Supreme Court experts say that Justice Elena Kagan is the vote to watch in an upcoming case over whether a memorial cross on government-owned land violates constitutional guidelines on the separation between church and state.
Kagan, who is Jewish, has written forcefully in favor of church-state separation. But on the issue of religious memorials on government-owned land, her views are may not fall in line with the court’s other liberal members, according to a Washington Post article published February 25.
In 2010, when she served as Solicitor General of the United States, Kagan successfully argued before the Supreme Court that another cross located on government land was not in violation of the Constitution’s establishment clause. It’s the most recent instance of the court taking up the matter of memorial crosses on public land before this week’s upcoming oral argument.
The latest case, captioned Maryland-National Capital Park and Planning Commission v. American Humanist Association, will decide whether a memorial cross located on public land dedicated to U.S. soldiers killed in the First World War violates the establishment clause and should be removed. The 4th Circuit Court of Appeals overturned a district court decision last March, ruling that the cross must go. According to the Washington Post, the Supreme Court is expected to reverse the 4th Circuit Court. Whether they make a broad decision, with far-reaching implications for religious monuments across the country, is up to Kagan.
Kagan could side with the liberals. But if she joins the conservatives, court watchers say, the impact could be significant.
“I think Justice Kagan might want to find a place in the middle that’s more than just ‘we know it when we see it,’” Richard Garnett, a professor at the University of Notre Dame Law, told the Washington Post.
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Josh Nathan-Kazis is a staff writer for the Forward. He covers charities and politics, and writes investigations and longform.