Law & the Courts

Does a War-Memorial Cross Violate the Establishment Clause?

(Jonathan Ernst/Reuters)
Oral arguments about the Maryland public memorial start this week.

Must a large Christian cross commemorating soldiers who died in World War I, which has been in place on public land for 94 years, be taken down because three people are offended by it? On February 27, the Supreme Court will hear oral arguments in the companion cases American Legion v. American Humanist Association and Maryland–National Capital Park and Planning Commission v. American Humanist Association. The constitutional issue concerns the allegation that the commemorative cross in Bladensburg, Md., which is located on a heavily traveled public highway and is known locally as the “Peace Cross,” violates the establishment clause of the First Amendment.

The appeal to the Supreme Court is from a 2–1 ruling by the Fourth Circuit Court of Appeals ordering that the Peace Cross be moved off public land or altered into some other shape. As the Fourth Circuit said, the case was initiated in federal district court by three plaintiffs who “have faced multiple instances of unwelcome contact with” and “are offended by the prominent display” of the Peace Cross. They regularly encounter the cross “while driving in the area” and “wish to have no further contact with it.”

In its ruling, the Fourth Circuit held that the Peace Cross “has the primary effect of endorsing religion and excessively entangles the government in religion.” In overturning the federal district court which had concluded that the cross, which had been financed and constructed by the American Legion in 1925, did not establish religion, the appeals court went all the way back to Everson v. Board of Education (1947) in holding that the cross, representing the “core symbol” of Christianity, “breaches the wall of separation between Church and State.”

The specific question for the Supreme Court is whether the continued maintenance of the Peace Cross is an act of government that “endorses” religion and “coerces” religious belief, or if, instead, the cross is a “passive display” that may continue to exist as a commemoration of war dead and as part of American public tradition. The briefs filed for and against the Peace Cross cite Lemon v. Kurtzman (1971), in addition to four recent cases, all decided by 5–4 votes: three recent Supreme Court cases about similar religious monuments and one case about public prayer.

The decision of the Supreme Court in Lemon v. Kurtzman (1971) brought about the “Lemon test” of establishment-clause jurisprudence. According to that test, legislation involving religion must have a secular purpose, must have a primary effect that neither advances nor inhibits religion, and must not result in excessive government entanglement with religion. In Lemon, the Supreme Court struck down, by an 8–1 vote, Pennsylvania and Rhode Island state laws that provided state salary supplements to teachers of secular subjects in private religious schools. It might seem that the Lemon test, which in the field of education was undermined by the school-voucher case of Zelman v. Simmons-Harris (2002), ought to control the Peace Cross case, but both sides emphasized a number of post-Lemon cases in their briefs.

One of these cases is Lynch v. Donnelly (1984), in which the Court upheld the city of Pawtucket, Rhode Island’s 60-year-old tradition of displaying a Christmas nativity scene. Chief Justice Burger, writing for the majority, held that the display was “passive,” had the “legitimate secular purpose” of recognizing a holiday that is a “national tradition,” and that the Constitution “affirmatively mandates accommodation, not merely tolerance of all religions, and forbids hostility towards any.” He said that the “wall of separation” between church and state only “forbids an established church or anything approaching it.” Three Republican-appointed justices – Brennan, Blackmun, and Stevens – joined Justice Marshal in dissent. Writing for the dissenters, Brennan said that the crèche was “coercive” and established “the sectarian preferences of the majority at the expense of the minority.”

In Van Orden v. Perry (2005), the Court upheld the constitutionality of a 40-year-old display of the Ten Commandments on the grounds of the Texas state capitol in Austin. Chief Justice Rehnquist, writing for the majority, held that the display was “passive,” a monument to the role of “both religion and government” in Texas’s history. Similarly to Lynch, three Republican-appointed justices — Stevens, Souter, and O’Connor — joined Justice Ginsburg in dissent. Justice Stevens said that the contribution of religion to the social and political “formation of Texas” had not been demonstrated and, therefore, the display was an unconstitutional example of “preferring religion to irreligion.”

McCreary v. ACLU (2005) was handed down on the same day as Van Orden v. Perry. The vote was again 5–4, but Justice Breyer, who had voted to uphold the Ten Commandments in Van Orden, switched sides and joined the majority in finding that a 1999 display of the Ten Commandments in the courthouse of a Kentucky town was unconstitutional. Maintaining that each case must be decided on its own facts and that a basic purpose of the establishment clause was to avoid divisiveness, Breyer concluded that the Kentucky display was divisive whereas the Texas display was not. The town had responded to the filing of the establishment-clause case by adding a display of historical, religious, and secular documents. The justices in the majority were Souter, Stevens, and O’Connor, together with Justices Ginsburg and Breyer. The majority opinion written by Souter focused on the purpose of the display and concluded that, even with the additions, it had always been intended to advance religion. In his dissent, Justice Scalia said that because the Ten Commandments are recognized by Christians, Jews, and Muslims, they do not advance any one faith.

In Town of Greece v. Galloway (2014), the governing board of the town of Greece, N.Y., had a policy of inviting individual members of the local churches on a non-discriminatory basis to open its monthly meetings with a prayer. In practice, reflecting the religious makeup of its citizenry, most of the prayer leaders were Christians. For the five-member majority, Justice Kennedy wrote that the prayers “comport[ed] with our tradition and does not coerce participation by nonadherents.” In a dissent for herself and Justices Ginsburg, Breyer, and Sotomayor, Justice Kagan wrote that “the citizens of this country” should not be required to “confront government-sponsored worship that divides them along religious lines.” Such practices “carry the ever-present potential to both exclude and divide.”

In the present case, the American Legion defends the Peace Cross by asserting that the proper question is whether the government is engaging in coercion. Citing Van Orden and Town of Greece, the Legion argues that “when a government uses religious imagery in a way consistent with ‘the rich American tradition of religious acknowledgments’ . . . the display will be presumptively valid unless it is shown that the government was exploiting this tradition to coerce or convert nonadherents.” Likewise, the Maryland-National Capital Park and Planning Commission maintains that “the purpose and objective meaning of the Peace Cross are secular” and that it is in keeping with “an undisputed tradition of displaying crosses as symbols of sacrifice and military valor.” The commission goes on to point out that a ruling against the cross would “threaten hundreds of other monuments,” referring to similarly free-standing crosses on public lands, not individual grave markers.

In addition to numerous legal and religious organizations, 29 states have filed a joint brief in support of the cross. In addition, 23 Republican U.S. senators, together with Democratic senator Joe Manchin and 85 current and former U.S. representatives, all Republican, have filed a joint brief on behalf of the cross.

In opposition, the American Humanist Association argues that since “the Cross is without question, a Christian symbol,” it “callously discriminates against patriotic soldiers who are not Christian.” The association holds that “’history and tradition’ has never conferred an independent basis to uphold a practice under the Establishment Clause.” It denies that coercion is the only issue. “Coercion is certainly a clear example of an Establishment Clause violation, but no more so than sectarian favoritism.” Under the Lemon test, the cross “endorses Christianity over all other religions . . . and religion over non-religion.”

Several organizations have filed briefs in support of the American Humanist Association’s position. Among them, the Anti-Defamation League, the Hindu American Foundation, Americans United for Separation of Church and State, the ACLU, and eight Jewish organizations jointly argue that the “towering Latin Cross here conveys a strong message of exclusion and secondary status” to “members of minority faiths” and that it “announces” that the site of the Peace Cross “is a Christian polity.” Liberally including references to President Trump and stating that “governmental efforts to institute anti-Muslim policies into law have become more common,” Muslim Advocates filed its own brief against the cross. The Freedom from Religion Foundation and American Atheists, pointing out that “today, between one-fourth and one-third of Americans identify as religiously unaffiliated,” argue that using the cross to memorialize all fallen soldiers “stigmatizes, marginalizes, and diminishes citizens who exercise their constitutional right not to follow or practice a religion.”

Other organizations representing minority religions disagree. The Islam & Religious Freedom Action Team of the Religious Freedom Institute claims that a ruling against a religious symbol of the majority religion would make it harder for any possible public and social recognition of “minority religions” which are “by definition . . . either unfamiliar or disagreeable to the majority of the population.” The Jewish Coalition for Religious Liberty argues that the Court should rule that the cross is a passive religious display that does not involve “government coercion of religious belief or practice.” And the National Jewish Commission on Law and Public Affairs and other Orthodox Jewish organizations point out that “a distinction is clearly drawn in Jewish law and tradition between the cross as a religious object and its use for secular commemorations and awards.”

The Peace Cross’s age should also be considered. The establishment clause, as conceived, written, and put into effect at the Founding, had the dual purpose of prohibiting the establishment of a national religion (“Congress shall make no law”) and protecting the already-established religions of ten of the thirteen states. The Peace Cross was erected in 1925 on county land without controversy under local, state, and federal law and custom. The Supreme Court did not “incorporate” the establishment clause until its 5–4 decision in Everson v. Board of Education in 1947, that is, 22 years later. Routine criminal and civil cases are litigated in court based on the law that existed at the time of the event or violation under consideration. Article I of the Constitution prohibits both state and federal ex post facto laws. If there were a constitutional or judicial version of the ex post facto principle, the Peace Cross would be grandfathered in.

Is this the only country in the world where three privately “offended” persons could bring a case in the nation’s highest court demanding the destruction of a public religious monument that has apparently been tolerated for almost 100 years, even by those who agree with the religious views of the plaintiffs in the Peace Cross case? In the modern age of judicial activism, three people, backed up by ideology-driven organizations like the American Humanist Association and the ACLU can manufacture a “case or controversy” that disturbs the public peace.

To have standing to create a “case of controversy” in federal (or state) courts, a plaintiff must allege “harm or injury in fact.” What is the harm suffered by the plaintiffs here? They can freely drive past the monument. They have never been prohibited from using the public land and park for personal or religious purposes. They have not alleged that they have ever been denied a request to have their own religious event or ritual at the park. Despite its large size, the cross is “passive” in the everyday meaning of the word. It is a pre-eminent religious symbol, indeed, but it is not actively evangelical, much less coercive. It has no effect on the free exercise, expressed publicly or privately, of the religious or spiritual beliefs of the plaintiffs.

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Thomas R. Ascik has written about legal and constitutional issues since retiring as an assistant United States attorney.

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