Before and After the Court: The Humanist Interview with Monica L. Miller
MONICA L. MILLER is senior counsel for the American Humanist Association (AHA). She obtained her BA from Pitzer College in 2008, her master’s in public administration from Columbia University in 2009, and three years later she graduated cum laude from Vermont Law School in 2012.
Since joining the AHA in 2012, Miller has vigorously defended the constitutional mandate of separation of church and state by litigating Establishment Clause cases across the country. She has served as lead counsel in over twenty-five federal cases, including before the US Supreme Court and the US Courts of Appeals for the Fourth, Fifth, Ninth, Tenth, and Eleventh Circuits. Miller has presented oral arguments before the Courts of Appeals for the Fourth Circuit (twice), Fifth Circuit, and Eleventh Circuit. She has filed a number of briefs in the US Supreme Court and served as counsel of record in Maryland-National Capital Park and Planning Commission v. American Humanist Association, challenging a forty-foot tall Latin cross on government land in Bladensburg, Maryland, dedicated to US war veterans. On February 27, 2019, Miller presented oral arguments before the Supreme Court in the case.
In pursuit of her concern for fundamental rights, Miller is also an attorney for the Nonhuman Rights Project, working to obtain common law personhood rights for nonhuman animals. This work has captured the interest of the world’s leading legal scholars, scientists, and journalists and is featured in an HBO documentary, Unlocking the Cage.
I had a chance to speak with Miller when she was in Washington, DC, following her Supreme Court appearance.
JENNIFER BARDI: Recently you presented oral arguments before the US Supreme Court, making the case for the Bladensburg cross to be moved, reshaped into something nonsectarian, or reassigned to private ownership. This is a case you argued successfully in the Fourth Circuit Court of Appeals two years ago. What was it like standing before the nine justices of the highest court in the land?
MONICA MILLER: It was intimidating at first. After the justices walked in and were getting situated, there was a brief moment where Justice Ruth Bader Ginsburg (RBG) peered her head over the table, made eye contact with me, and cracked a little grin. My heart was pounding, and for a brief moment I thought, what am I doing here?!
I looked over at my opponents’ full table—each seat was occupied by a man with eons of Supreme Court experience (just google Neal Katyal, Michael Carvin, and Jeff Wall). They were surrounded by very helpful looking junior and senior associates (closer to my age) who were unloading documents from briefcases for them. As I started unloading my own bag of files, a clerk approached me and jokingly asked if this was a “case of abandonment” in reference to the fact that I had three empty seats to my left. “No sir, just me today,” I quipped, and then took a huge swig of water and sat back down. The deputy solicitor general (Wall) came over to shake my hand and whispered something to the effect of “you’ve got this, kid” (not those words, but the gist), which I took as a kind gesture.
As I was giving my opening remarks, I did my best to ignore the fact that the chief justice of the US Supreme Court was staring right at me, listening to my every word, and that, ultimately, the whole world would have access to my remarks on the Supreme Court website. No pressure, right?
But once the justices starting throwing questions at me, it didn’t feel much different than any other case I’ve argued, except that the questions were coming from nine humans in black robes rather than your standard three at the circuit level. That was, of course, until RBG addressed me directly; that felt surreal. It was in response to a question from Justice Gorsuch about the cross-shaped steel beams that were pulled from the rubble of the World Trade Center after 9/11. He asked if my position would prohibit cities and states from duplicating that cross to memorialize 9/11. I started to answer that it would depend on how it was displayed when she interjected [the following comes from the official transcript]:
JUSTICE GINSBURG: Didn’t you answer that it doesn’t exist in splendid isolation?
MILLER: Exactly. It does not exist in isolation, yes, it’s—it’s in a museum.
In my head I was screaming, RBG JUST SPOKE TO ME! ME!!! AND SHE’S TRYING TO HELP ME! I CAN’T WAIT TO TELL MY MOM ABOUT THIS!
BARDI: I love that. Those who were present for the oral arguments (or listened to audio) remarked at how intellectually rigorous the exchanges were between the Supreme Court justices and the attorneys on both sides—and that the justices’ questions indicated the case is hardly a slam-dunk for the opposition, which wants the giant, crumbling cross to remain as is. What do you think?
MILLER: It’s interesting because I walked in certain I didn’t have five votes in our favor. In fact, one of the kindest things anyone said to me before the arguments was, “don’t worry, Monica, we know you don’t have five votes, and it’s not your fault. You’ve done everything possible to win, and you should win, but we can’t control who’s on the court.” Others concurred. It was a relief to know that my lawyer friends at the other church-state separation organizations won’t blame me if we lose.
That said, I left the courtroom with a sense that it’s not over yet. As I’ve always maintained, there’s no principled way to rule against us. These are the options: 1) carve out an arbitrary exception for old monuments (even when, as here, they’re actively used and promoted by the government on an annual basis); 2) declare that the Latin cross honors everyone: Jews, Muslims, and atheists (the government’s argument); or 3) overrule seventy years of precedent and hold that the Establishment Clause permits the government to favor one religion over another (the American Legion’s argument).
BARDI: Some characterized Samuel Alito as hostile, Neil Gorsuch sarcastic, and Sonia Sotomayor as helpful. And of course Ruth Bader Ginsburg is such a powerful presence. Were you surprised by any of the justices, either by their demeanor or the way they approached the case?
MILLER: I really wasn’t surprised. I expected Justice Sotomayor to be my most vocal ally (with RBG asking a few poignant questions), Justice Thomas to be silent with his chair reclined, Justice Breyer to ask me about history, Justice Gorsuch to ask me about the Lemon test and maybe standing (he asked about both), and Justice Alito to me ask me a series of impossible hypotheticals (which he did). I wasn’t sure about Chief Justice Roberts or Justice Kavanaugh. I read Kavanaugh’s lower court opinions and cited a few key quotes of his in my brief. For instance, he agreed with Justice Kennedy that a large Latin cross on the roof of a city hall would clearly violate the Establishment Clause. And he also noted a difference between legislative prayer and religious monuments, the latter being more problematic. Chief Justice Roberts hasn’t said a whole lot on the Establishment Clause, but I know he cares about the integrity of the court. Overruling seventy years of precedent doesn’t exactly align with that goal. So we’ll see!
AHA supporters rallied outside the Supreme Court on February 27, 2019
BARDI: Which of the points that you made in oral arguments do you feel resonated most favorably with the justices? On the flip side, what might you have approached differently in hindsight?
MILLER: That’s tough. I think the justices were receptive to my argument that the Latin cross does not honor Jews, Muslims, and humanists. You’d think that would be obvious, but the government’s argument is that the cross, in fact, honors everyone. There was a moment where Katyal (arguing for the Maryland-National Capital Park and Planning Commission) was actually explaining to Justice Ginsburg that the Latin cross, in the WWI context, represents Jews. She noted (as I did repeatedly in my brief) that the Star of David represented Jews in WWI just as it does today. He basically told her the cross was a more representative symbol because it dominated WWI cemeteries. She told him she’s been to overseas WWI cemeteries and has seen the Stars of David with her own eyes. I picked up on that exchange by making my opening statement about how everyone in the 1924 congressional hearing about overseas markers was in agreement that it would be completely inappropriate and even sacrilegious to place a Latin cross over the grave of a fallen Jewish soldier.
I also think the justices were receptive to my argument that the crosses at Arlington National Cemetery would not be threatened by a ruling in our favor. And I really hope I got through to them that there’s no test better than Lemon and that even my opponents were relying on it without saying so (“purpose,” “effect,” “context”).
As for regrets, I used the word “loud” to describe a large cross in the middle of the highway, and Justice Gorsuch pounced on that to make his point about standing. Frankly, he probably would have done the same if I had used any other descriptive word (“huge,” “gaudy,” “imposing,” “monolithic”) but if I could go back in time, maybe I’d use another term.
Justice Kavanaugh asked me a really bizarre question at the end—when my light was red (meaning time’s up)—and I didn’t quite understand it and rather than ask for clarification (no time for that), I decided to just use it as an opportunity to say something important to our case: that millions of Christians support us and believe that the government’s co-opting of their symbol infringes upon their religious liberty. But he didn’t accept that and the Chief Justice said he’d give me several minutes to answer. So, Kavanaugh repeated the question and it still wasn’t resonating with me, so I took the opportunity to make another point: that the cross doesn’t need to be torn down. But again, that was not responsive. Justice Sotomayor tried to help explain Kavanaugh’s question—basically he was asking if it would be more appropriate for the Maryland legislature or the Maryland courts to decide the constitutionality of the cross rather than the US Supreme Court. Once I finally understood that was what he was asking, I emphatically said no, the high court has a duty to interpret its Constitution. I guess what I’m getting at is, I could have handled this better by really trying to understand and answer his question in the first instance, but I also don’t hate that I got a few extra points across that I wanted to make after my time was technically up. I asked other lawyers afterwards if they understood his question and they said they were equally stumped until Sotomayor jumped in to clarify.
“It was a distinct honor to present the oral arguments at the Supreme Court,” Miller says. “ And, like I said, it’s not over yet.”
BARDI: Monica Miller, you just argued a case before the US Supreme Court. What are you going to do now?! But seriously, for those who may think this is your only case, what other church-state violations is the AHA focusing on? What other areas of the law interest you?
MILLER: I have a backlog of work waiting for me! I am currently working on our case against a new Ten Commandments monument in Arkansas; our legislative prayer case in Carroll County, Maryland; and our humanist prisoner case in Nevada.
In addition to working full-time at the AHA, I also serve as a part-time lawyer for the Nonhuman Rights Project, where we are seeking to obtain fundamental common law rights for autonomous nonhuman animals, such as chimpanzees, elephants, and cetaceans.
BARDI: The percentage of women who argue before SCOTUS is not high. In the 2016-2017 term, 21 percent of the attorneys who presented oral arguments before the high court were women, and in the last term only 12 percent. Do you have any thoughts on this?
MILLER: It’s unfortunate that there’s still a thick glass ceiling at the Supreme Court. I think there’s an age gap too—I believe most attorneys arguing before the high court are in their fifties or older. You don’t see many thirty-somethings arguing constitutional cases (as opposed to criminal cases, which is more diversified). But I tried not to dwell too much on these statistics because doing so can foster self-doubt: Am I really the best person to be arguing the case? Would they understand a man better? Do I talk too fast? Do I sound too shrill? Will they trust my intellect? Will they be distracted by clothing choices? Hair? Nails? I hope we see a change in the future!
BARDI: If there’s one thing you could say to humanists who support the AHA in the Bladensburg case in the event that it doesn’t go our way, what would it be? If we win, what would you say to cross supporters?
MILLER: If we lose, I’m pretty confident it will be on a narrow basis. If it’s a sweeping loss, then we’ll just have to fight harder in the state courts and in the polls to make sure future justices interpret the Establishment Clause as our framers intended: as erecting a wall of separation between church and state.
If we win, cross supporters should feel that they’ve won too. As I wrote in our brief, “[i]f the government prevails, it will be a Pyrrhic victory indeed, at least for devout Christians. Allowing the government to recast the Latin cross as a benign secular symbol of war denigrates the religion that it symbolizes.” I would encourage them to read the amicus brief of the Christian organizations in support of our position, which was signed by the Baptist Joint Committee, the Evangelical Lutheran Church in America, the General Synod of the United Church of Christ, and the General Assembly of the Presbyterian Church. These groups represent millions of US Christians who understand that separation of church and state protects Christians just as much as it does atheists. They recognize that the government’s display of the Latin cross desacralizes the most sacred symbol of Christianity.
And a finding that the government’s actions violate the Establishment Clause does not require the Bladensburg cross to be torn down. The other options are to move the cross to private land, transfer the land underneath the cross to the highest bidder (along with a disclaimer sign), or modify the monument to be inclusive of all veterans.
I would also assure them that we would never go after crosses in cemeteries. We’ve made that clear from day one, and when the Fourth Circuit ruled in our favor, it explicitly stated that the Arlington National Cemetery crosses are not at risk.
BARDI: Well, Monica, on behalf of the American Humanist Association and all who support the secular nature of our Constitution, thank you!
MILLER: Thank you. It was a distinct honor to present the oral arguments at the Supreme Court. And, like I said, it’s not over yet.