The requisite caveat about not presuming too much from the tenor of oral arguments before the Court is hereby duly noted, but more than one media observer today was struck by how open most of the justices seemed to leaving the cross in place. And when I say “most,” I don’t mean the conservative five. Breyer and Kagan also seemed wary of ruling in a way that would require Maryland to have the cross removed.

What makes this worth noting, though, isn’t the particular issue in this case. It’s the fact that the Court sounds understandably frustrated with its Establishment Clause jurisprudence about religious monuments on public land and might be toying with creating a new standard.

But wait, back up. What’s the Peace Cross, you ask, and what does the Court currently say about religious symbols on government property? As chance would have it, I wrote about that when this case was working its way through the appellate system. Go read, then come on back for fun from today’s hearing.

Justice Elena Kagan noted that after World War I, crosses “became, in people’s minds, the preeminent symbol of how to memorialize World War I dead.” She suggested in such a case the particular religious content of a cross could be “stripped of” significance. Justice Brett Kavanaugh said that the court has upheld other religious displays on public ground. Justice Samuel Alito stressed that the 49 soldiers honored on a plaque at the bottom of the memorial were likely Christian and would not have objected to the government’s use of the cross. Alito said the case would be different if some of the fallen soldiers were of a different faith…

Justice Stephen Breyer suggested the court could draw a line, saying “past is past” allowing the cross in question and others with similar historical context, but saying that “no more” similar memorials could be built in the future…

Justice Neil Gorsuch called some of the Court’s precedent concerning the Constitution’s bar on the government favoring one religion over the other “a dog’s breakfast” and urged his colleagues to issue more clear guidance. “Is it really fair on the lower court judges struggling to apply this Court’s dictates?” he asked.

“A dog’s breakfast” is right but I don’t think it could be any other way. The Court doesn’t want the headache of ruling that all religious symbols on state land (except headstones) are unconstitutional but it also doesn’t want to encourage indoctrination-minded public officials to start putting up crosses at the local courthouse or whatever by drawing some broad rule in which monuments are almost always okay. So it’s encouraged lower courts to use their common sense by asking them to follow the “Lemon test,” which looks at the purpose of the monument, the effect on the viewer, and whether the monument “entangles” the state with religion excessively. They’re trying to cover all of their bases there, making sure to block symbols that are improperly motivated by the desire to indoctrinate but also symbols that might seem like they’re endorsing religion even if that wasn’t why they were erected. Like I said in 2017, a ginormous Jesus statue dedicated as a war memorial might not technically have indoctrination as its purpose but its sheer awesome scale might have that effect on some viewers. If you want to carve out exceptions for religious imagery on public land, can’t have your imagery be too impressive!

Such has been the jurisprudence until now, to everyone’s dissatisfaction since usually this stuff is in the eye of the beholder. The Peace Cross in Maryland is a perfect example. It’s a war memorial in honor of the fallen of World War I; it’s not a celebration of Christianity. But it’s pretty impressive at 40 feet tall, and of course the shape is a straight-up symbol of America’s dominant religion. That was the view taken by Ginsburg and Sotomayor today, apparently: It’s a cross, and it’s really big! You can see it from a distance and might have no idea it’s a war memorial. We don’t want a rule where the government is fine with putting up big crosses so long as they have clean hands on an ostensibly secular purpose. On the other hand, (probably) all of the men remembered in the inscription on the monument were Christians themselves and thus the cross really isn’t much different from a large version of a veteran’s headstone, representing the beliefs of the people it honors, not an endorsement by the state. Is a single 40-foot-tall cross at a traffic roundabout that much more visually impressive than the acres of headstones with crosses on them in the hallowed grounds of Arlington? Which is more likely to make you emotionally sympathetic to Christianity?

George Will nudged the Court to move past the “Lemon test” in his latest column and emphasize coercion as its new standard instead:

In 1984, the court added an “endorsement” consideration: Would a common-sensical observer of a government display that includes a symbol with religious overtones — an observer knowing how the display came about — think the government is using it to “endorse” religion? In 1989, the court sidled even closer to wisdom, with a “coercion” criterion. Rather than ignite tens of thousands of skirmishes aimed at scrubbing all visual religious references from this nation’s public spaces (including the names of Corpus Christi, Tex., and Las Cruces, N.M.), let’s say this: Religion is not “established” when a passive monument on government property in no way coerces reasonable, informed passersby to believe, practice or support religion.

I share that instinct, but in theory Will’s rule would allow Congress to erect a 500-foot cross in front of the Capitol. Would that be “coercive”? Not really. Would it suggest an endorsement of a particular religion? Very much so, sure. If you want to follow the Will rule, you might have to sign off on formal government endorsement of faith as well, at least in “passive” displays.

Most people have a common intuition on this, I think, which Breyer’s point about “grandfathering in” old religious symbols alludes to. If a monument’s been there for awhile, just leave it be. If there’s any indoctrinating effect from the Peace Cross, it’s sufficiently negligible that it’s not worth bringing in the backhoes to uproot it and similar memorials. This is penny-ante stuff, offensive only to the ardent nonbelievers who are least likely to be indoctrinated in the first place. And as the Christian majority shrinks, the odds that elected officials will want to risk fights on this subject by installing new Christian symbols on state land should shrink with it. Or so one might think: It’s not hard to imagine red states answering growing irreligiousness in other parts of the country by wanting to assert their devotion to Christianity in more formal ways in their own state rituals. And how would Breyer’s inclination work as a matter of constitutional law? There’s no Establishment Clause violation if a war memorial shaped like a cross was erected in 2018 but it’s a violation if the same memorial is erected in 2020? C’mon. That’s a clown rule, bro.

I’m curious to see if they uncork a new standard or at least a refined “Lemon test” for the monuments question when they finally rule on this but in practice I think we’re stuck with the basic analysis unto eternity. The less gaudy and less obviously designed as an endorsement of religion that a monument is, the more constitutionally acceptable it is. But where that line is crossed depends almost entirely on the judge.