A majority of the Supreme Court suggested Wednesday that a 40-foot cross on public land in Maryland that was built to honor fallen soldiers in World War I does not violate the separation of church and state, but the justices struggled to settle on a rationale that lower courts could apply to other religious symbols on public lands.
Several of the justices pointed to the fact that the cross in question has stood for nearly a hundred years in a Maryland suburb, in a park close to other war memorials.
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.
At one point, Alito told a lawyer challenging the constitutionality of the cross that there were similar memorials all over the country. “Do you want them all taken down?” he asked.
But when it came to the test that could be used for those memorials and others, the justices did not seem to agree on any particular rationale.
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.
“We are a different country now,” he said. “We are a different country now, and there are 50 more different religions” he said.
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.
In court Neal K. Katyal, representing the Maryland-National Capital Park and Planning Commission in favor of the cross told the justices that it should not be “dismembered or destroyed.”
The American Legion built the so-called “Peace Cross” in 1925 to honor 49 local men who died serving in World War I. Mothers of the fallen soldiers designed the memorial to mirror the crosses that mark graves in American cemeteries overseas.
“This Memorial Cross Dedicated to the Heroes Of Prince George’s County who gave their lives in the great war for the liberty of the world,” a plaque reads.
The cross was deeded to the Maryland-National Capital Park and Planning Commission in 1961, after a highway was built around it. It stood without conflict until 2012, when nearby residents sued, arguing that they are offended by the government’s endorsement of religion and the fact that the cross is maintained with taxpayer money.
The fate of the cross that is illuminated at night and hosts annual Veterans Day and Memorial Day celebrations has divided the community.
Last week, when two of the plaintiffs stood for an interview in front of the cross explaining their position, cars whizzed by and one driver stuck his head out the window yelling, “Save the cross!” as he careened around the intersection.
Fred Edwords and Steven Lowe, with the support of the American Humanist Association, are behind the challenge.
“As a memorial to all veterans, it only seems to represent – the cross – Christian veterans,” Lowe told CNN in an interview.
“I’m not offended by the cross per se. What offends me is that it’s on government land promoting government endorsement of religion, and it’s not my religion,” Edwords said.
“But even if it were my religion, I would not want my tax dollars used to endorse it,” he said.
They lost when a district court upheld the cross. But in 2017, a panel of judges on the 4th US Circuit Court of Appeals ruled 2-1 to reverse the decision, saying that the government had “excessively entangled itself with religion.”
In court, Monica L. Miller, a lawyer for the American Humanist Society representing the men, argued the memorial should either be moved to private property or modified.
But Stan Shaw and Mike Moore, both of American Legion Post 131, say that removing the arms of the cross would amount to disfigurement.
“Defacing it by taking the arms off or anything of that nature – it’s just a slap in the face for veterans,” Shaw said.
“I don’t see how a static cross can coerce anybody into a state religion,” said Moore.
“Where will this end?” he asked. He said he is concerned that if they lose in court it will end by people trying to “take down every reference to God, every cross in every memorial that exists in the country.”
Indeed 84 House and Senate lawmakers have filed a brief in support of the American Legion, arguing that if the court rules against them in the case it could impact other crosses such as two that stand in Arlington National Cemetery in Virginia. One is the 13-foot-tall Latin cross called the Argonne Cross, dedicated in 1923 to the “memory of our men in France,” and another is the Canadian Cross of Sacrifice, which stands 24 feet tall and was donated by the Canadian government to honor Americans who died in war.
The Trump administration supports the American Legion and urges the justices to take a historical approach to the case. “History shows that the Framers understood the Establishment Clause as prohibiting the coercion of religious belief or adherence, but not the acknowledgement of religion in public life,” Principal Deputy Solicitor General Jeffrey B. Wall argued in briefs.
He said that “passive displays” like the Peace Cross fall on the “permissible side” of the line because they “typically do not compel religious belief; coerce support for, or participation in, any particular religion or its exercise; or represent an effort to proselytize or denigrate any particular faith.”
On the other side is a friend of the court brief filed by the Freedom from Religion Foundation and other groups that advance the rights of atheists, agnostics and nonbelievers.
They argue that when the government selects a single religion’s symbol to remember war heroes it “stigmatizes, marginalizes and diminishes those citizens who exercise their constitutional right not to believe or practice the endorsed religion or any religion.”
The Supreme Court heard a similar case back in 2005 concerning the Ten Commandments. The court allowed a Ten Commandments monument that stood in a Texas public park, but it struck down a similar display in two Kentucky county courthouses.
The justices could issue a broad ruling that would cover all religious symbols, or they could confine their opinion around the specifics of the Peace Cross.
Two constitutional lawyers, Walter Dellinger and Martin S. Lederman, suggest in another friend of the court brief that there are “discrete contexts” when the government’s display of religious symbols does not violate the Establishment Clause. That includes a symbol on a headstone that corresponds to the deceased’s religion, or the Peace Cross.
The lawyers argue the “idiosyncratic characteristic” of the cross is that the 49 men memorialized were likely all Christian. That would mean that the cross can be seen “not as religious expression of the state itself,” but instead “a respectful representation of a fact about the religion of those being honored – something the Establishment Clause generally does not prohibit.”
A decision in the case should come by late June.