Can a cross memorial ever be a “secular symbol” when placed as a war memorial? It might come as a surprise that about a decade ago, the United States Supreme Court said it could. That was perhaps one of the biggest mistakes the court has made since the turn of the century, but last month the Supreme Court agreed to take up that question anew this term—hopefully this time they get it right.

In 2010, Salazar v. Buono reached the Supreme Court. The case involved a giant cross placed on a piece of land in the Mojave preserve in California. The cross was placed to honor American war dead following World War I and was erected in 1934. No one really took issue with the memorial until 2002. The cross was stolen, but recovered by U.S. rangers—and restored to its location. The U.S. Park Service transferred the cross and the land it stood on to the Veterans of Foreign Wars. The giant cross was rededicated “for all the dead of all wars.”

The dead, of course, cannot speak for themselves. But their survivors can—and some of their survivors did not feel that soldiers of non-Christian tradition would feel honored by a giant cross memorializing their service.

Salazar went to the Supreme Court. The appellant was represented by Jewish attorney Peter Eliasberg. He was sharply challenged by Justice Antonin Scalia who tersely suggested that the cross is a secular symbol.

Scalia always prided himself on interpreting matters under the doctrine of original intent. In this case he took the memorial at face value. He called the entire argument ridiculous, scolding Eliasberg: “It’s erected as a war memorial. I assume it is erected in honor of all of the war dead.”

The Jewish lawyer challenged the judge, explaining that he had relatives who were veterans in the armed services: “I have been in Jewish cemeteries; there is never a cross on a tombstone of a Jew.”

Eliasberg went on to say that not one of his relatives had been buried under a cross. Scalia called Eliasberg’s version “an outrageous conclusion.” The Supreme Court eventually found the cross to be “a secular memorial” in a 5-4 decision

Scalia is now dead. Possibly even buried under a cross. But now the Supreme Court agreed to hear a new dispute which will, perhaps, allow them to get the law right. Rather than being about federal land granted to a private entity, the basis of the dispute is whether ownership and control of a cross erected on private land can be transferred to the government.

The newest dispute involves a heavily trafficked highway in the State of Maryland. The “Peace Cross” was erected in 1925 on land owned by the American Legion in the town of Bladensburg as a tribute to local men who died during World War I. It was placed on a road between Baltimore and Annapolis in a highly visible area. In 1961, the State of Maryland, as part of a capital project, expanded the highway and purchased the land on which the cross memorial sits through eminent domain. For the past 57 years, the state has paid for its maintenance and upkeep.

In 2015, the American Humanist Society filed suit in District Court in Maryland. U.S. District Judge Deborah K. Chasanow ruled in 2015 that the cross could remain, calling it a historically significant and secular war memorial. Critics suggest that the issue is one of mere maintenance. The government mows the lawn, as it did before. The problem is that the lawn it mows is affixed with a giant crucifix establishing that the government is directly involved in the promotion of a Christian symbol, deceptively modeled as a secular symbol.

Last year, in a split decision, a divided three-judge panel of the U.S. Court of Appeals for the 4th Circuit in Richmond disagreed, finding the cross on public land an unconstitutional government endorsement of religion.

The State of Maryland suggests that the dispute is a cultural war against religion. They argue that the critics of the Peace Cross are trying to create a land free of secular symbols. They suggest that if the Supreme Court affirms the 4th Circuit’s decision, then the government will need to rip every religious symbol—be it the cross or the star of David on top of the graves of the war dead at Arlington Cemetery.

This is, of course, a specious argument. The war dead are buried under symbols representative of their personal faiths. The 40-foot cross in Maryland is placed as a memorial to “all” war dead—regardless of religion. It is an argument that suggests an explanation of the famous cartoon character Bart Simpson who describes Christmas as “a time that people of all religions come together to worship Jesus Christ.”

Another attack on critics of the Peace Cross takes issue with critics of its intent—as erected by the American Legion. They lament the lawsuit by explaining that “the Peace Cross was meant to commemorate peace and to memorialize the dead of war…not to start one.” They say that “The Peace Cross is a war memorial. Simply because it is shaped like a cross, 40 feet tall, visible to the public, and maintained by the government doesn’t mean it establishes a religion.” Well…

That the cross is a secular symbol or has no religious meaning might come as a surprise to my neighbors who place the “Keep Christ in Christmas” sign in their lawn each December. The truth is that the cross is a symbol of extraordinary import to religious Christians—and they are entitled to it, with all of its meaning. What they are not entitled to is to treat the cross as something mundane and something that has no religious meaning.

The Supreme Court has agreed to review the matter this term. The answer should be clear to anyone not seeking to tie logic into knots. This case will be a test of the justices who say that they are guided by the concept of original intent. There is no reason to delve into symbolism. A cross is a cross. It is a Christian symbol. It is not an eagle or even an American flag but the specificity of a religious symbol established on government soil: the very basis in violation of the clear meaning of the First Amendment prohibition against the government establishing a religious preference. Hopefully, the Supreme Court will take advantage of its opportunity to get the do-over right.

By Stephen Loeb

Stephen R. Loeb heads the Law Office of Stephen R. Loeb, a civil practice in New Jersey and New York. He can be reached at [email protected].