by Thomas Valentine
The Supreme Court ruled 7-2 on Thursday that the Peace Cross in Bladensburg, Md., being challenged by the atheist American Humanist Association, does not violate the First Amendment’s Establishment Clause and should be left alone.
The Bladensburg World War I Memorial, as the Peace Cross is formally named, was built from 1919 to 1925 to remember the 49 men from Prince George’s County, Md., who perished overseas in WWI. It was funded by private donations from local families and businesses and the local American Legion, and built on private land. In 1961, the land was turned over to the government-run Maryland-National Capital Park and Planning Commission, which is responsible for maintaining the memorial. The land was subsequently developed over the years and the cross now stands in the middle of a busy roadway. The memorial was listed on the National Register of Historic Places in 2015.
The American Humanist Association, a well-funded atheist activist group, filed a lawsuit in 2014 seeking a judgement that the cross was an breach of the First Amendment prohibition on Congress establishing religion. The AHA represented three local atheists who said they “have faced multiple instances of unwelcome contact with the Cross. Specifically, as residents they have each regularly encountered the Cross while driving in the area, believe the display of the Cross amounts to governmental affiliation with Christianity, are offended by the prominent government display of the Cross, and wish to have no further contact with it.” A U.S. District Court judge in Maryland ruled against AHA in 2015, saying that the memorial served a secular purpose in addition to the religious significance of the cross.
But the AHA appealed the ruling to the Fourth Circuit Court of Appeals, which declared in a 2-1 decision that the memorial’s status on public land violated the First Amendment because it “excessively entangles the government in religion because the cross is the core symbol of Christianity and breaches the wall separating church and state.” The Fourth Circuit demanded that the cross either be desecrated to have its arms removed so that it looked like a “non-religious slab or obelisk” or be demolished.
The park commission and the American Legion appealed the ruling to the Supreme Court, which accepted the case last year. The Legion argued that the demand that the cross’s arms be removed to form a non-religious obelisk would not solve the issue of religious symbols because an obelisk is a traditionally pagan symbol. The Democrat attorney general and Republican governor of Maryland both sided with the American Legion and urged the Court to leave the cross alone. Recognizing the threat a ruling against the cross would pose to memorials, dozens of groups filed briefs with the Supreme Court urging they rule in favor of the American Legion, including a group of dozens of retired generals and flag officers, numerous religious freedom groups, over 200 members of Congress, and 30 state attorneys general. Only a handful of briefs sided with the atheists.
The court ultimately ruled in favor of those defending the cross in a 7-2 decision. Justice Samuel Alito, writing the majority opinion, said the cross became a central symbol of World War I, representing the thousands of men buried under white crosses in American military cemeteries in Europe. He said removing the cross would not restore neutrality; it would represent “a manifestation of hostility toward religion that has no place in our Establishment Clause traditions.” He also said that altering or destroying the cross would lead to a Taliban-esque crusade across the country to desecrate other memorials.
In their dissent, Justices Ruth Bader Ginsburg and Sonia Sotomayor argued that since the cross is the foremost symbol of Christianity, “maintaining the Peace Cross on a public highway…elevates Christianity over other faiths, and religion over nonreligion.” They said that a possible solution would be to turn the land back over to private citizens.
Several of the justices who joined Alito’s majority opinion also wrote their own concurrences. Justice Brett Kavanaugh took issue with the complicated Lemon test the court created in 1971 as a formula for how to deal with establishment cases, saying the only considerations should be whether the practice at issue is coercive (the cross is not, he said) and whether it is rooted in history and tradition (the cross is, he said).
Justice Clarence Thomas also wrote a concurrence making the case that the establishment clause does not apply to states at all, since it explicitly says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Even if the clause did apply to the states, he said, the cross would not violate it. Thomas also called for the court to stop relying on the Lemon test.
Justice Neil Gorsuch wrote that he wouldn’t have even considered the case because the local atheists, as a random group of offended citizens, did not have the legal standing to bring the case in the first place. But he agreed that the cross should be allowed to stand and even took a broader view, objecting to Alito’s emphasis on the age of the cross as evidence it should be allowed to stand. He said the age did not matter; whether the cross was erected in 1925 or 2015, it did not violate the fixed meaning of the Constitution. He pointed to a Star of David memorial erected in South Carolina in 2001 as an example of a memorial that did not need to face the age test and would be threatened by the Fourth Circuit ruling.
Justice Stephen Breyer, joined by Justice Elena Kagan, said there is “no single formula for resolving Establishment Clause challenges,” but that the most important consideration is “the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its separate sphere.”
An attorney for the American Legion applauded the majority ruling, saying, “This decision simply affirms the historical understanding of the First Amendment and allows government to acknowledge the value and importance of religion.” The Trump administration, which also supported the cross in a brief to the court, said, “The court’s decision today is a win for protecting religious freedom and American historical tradition.”
Photo credit: Maryland GovPics via Flickr, CC BY 2.0