In Peter Irons' book God On Trial, one of the cases involves a nearly thirty foot high cross used as part of a military memorial. A recent federal ruling held it "communicates the primarily non-religious messages of military service, death and sacrifice." One complication was the federal government stepping in to take control. It was a long drawn out affair, apparently still ongoing, even after twenty years. The size of the sectarian symbol and extended involvement of the government, including the federal government, makes it a troubling one. Justice Kennedy, who generally supports allowing religious symbols on public property, once noted:
Symbolic recognition or accommodation of religious faith may violate the Clause in an extreme case. [n1] I doubt not, for example, that the Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall. This is not because government speech about religion is per se suspect, as the majority would have it, but because such an obtrusive year-round religious display would place the government's weight behind an obvious effort to proselytize on behalf of a particular religion.
The importance of context in cases of this nature suggests that a cross on top of a city hall might not be the same thing as one in a park, particularly one used as some sort of military memorial. The first religious display case decided by the Roberts Court dealt with a Ten Commandments monument in a park, but it was treated as a free speech case -- the government did not have to allow other religions to put in place their own symbols once one religious symbol was in place if the symbol was in some fashion government speech. Thus, it would likely be different if a public forum was involved where the public was allowed to insert things.
The first Establishment Clause religious symbol case for this Court involves a much smaller cross in the middle on nowhere, and might be disposed of on standing grounds. We have been down the standing road in this area before with these guys. The Court as a whole (at least a majority of it) does not only want a smaller docket for itself, but -- in various ways at least -- to make it harder to bring cases across the board. Breyer might sign on, since he has shown signs wanting to avoid these types of controversies when necessary. Stevens might fear that doing otherwise will open the way to a too "liberal" allowance of religious symbols on public lands.
This is the sort of case that deals with an important principle, even if it might not be something to lose sleep about as a specific matter. This is underlined by Scalia's insistence that a cross display honors all veterans, even those who do not share the religious symbolism it portrays.* It takes the Catholic litigant here, ironically someone who might not be deemed worthy to bring the case, to remind that selective use of religious symbols on public land is a problematic enterprise. This includes Congress going out of its way to support it, shifting the tiny bit of land it is on to private hands only as long the cross is available. This is clear religious entanglement.
The case is comparable to the last one in that the recent controversy arose when Buddhists wished to put their own symbol nearby and the National Park Service refused. The diversity of possible religious points of view here is underlined by the fact that Arlington National Cemetery "offers 64 different religious symbols for headstones — including those for Christians, Jews, Muslims, Buddhists and Wiccans." Thus, there, a religious symbol on a tombstone or the like does not send a message to the reasonable observer of religious favoritism, to paraphrase current precedent.
Such diversity underlines that use of only one religious symbol to honor war dead [or veterans in general] is a problematic enterprise with clear religious favoritism aspects. It is not the same thing as allowing some group to put a Ten Commandments display among others, even if the government in some fashion endorsed it. [Not that I think that is legitimate, but the Supreme Court in various cases does.] If nothing else, the case provides a troubling fact scenario. Pragmatically, it might be useful to get rid of the case, but on principle, this is problematic. Likewise, the method used very well can inhibit many more challenges, even when the display is worse than this one.
More material here.
[Further Thoughts: Justice Ginsberg, as compared to Breyer, does not go to the "Red Mass" before the start of the term because past anti-abortion sermons upset her as too strident. The source of this tidbit is a book that provides interviews with various well known Jews. Symbolic acts are quite important to many.
In her chapter, we also learn that RBG also (after being told about it by a law clerk who noted various Orthodox Jews wrote letters on the matter) discussed pushing to allow lawyers to have "In the Year of the Lord" removed from their certificates from the court. One unnamed justice (Scalia?) noted it was good enough for past Jewish justices; it was not good enough for her. This is a personal matter, involving one's own certificate, true, but so in a fashion is the symbol used to honor war dead in the eyes of some veteran involved.]
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* Scalia showed how the misguided often are quite passionate in their error:
Justice Scalia grew visibly angry. "I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead," he said. "I think that’s an outrageous conclusion."
"That" being that Jewish tombstones don't tend to have crosses on them. It's charming that the government selectively uses sectarian symbols to honor everyone, or so they do in their minds, but this doesn't necessarily make it acceptable.