Monuments are an important part of our civil religion. They tell us who we are and what we should honor. That’s why the debate over the Confederate statues has aroused such strong feelings. These stone and metal markers can represent a part of our past that, once removed, implicitly or explicitly erases the history and suffering of our fellow citizens.
But other monuments can serve instead to unite Americans through their common past and recognized sacrifice with what Abraham Lincoln called the better angels of our nature. One such monument is the Peace Cross in Bladensburg, Maryland.
Built of concrete and bronze, the memorial was designed in 1919 by the mothers of 49 men who lost their lives in World War I. The American Legion built the memorial in 1925, and it has stood ever since as the gravestone for those men, who remain buried overseas. These mothers — and others around the nation — faced the agony of perhaps never being able to visit their sons.
In response to this national problem, in 1923, the American Battle Monuments Commission was formed, which was charged with developing suitable monuments, including religious ones, for the World War I battlefields overseas, since bringing all the soldiers’ remains back to the U.S. was not feasible.
This is the kind of memorial that should unite Americans, and in fact it has stood without a problem for almost a century. Every year sees veterans, service members and descendants of those honored return to the cross to remember.
Despite this history, the federal Fourth Circuit Court in 2017 ruled that the cross “endorses” a particular religion in violation of the First Amendment and must be torn down. One judge even mused that this monument, devoted to the sacrifice of veterans in the Great War, be mutilated (by having the cross arms cut off) to satisfy an abstract constructional test to supposedly avoid even the appearance of religion in the public square.
The Supreme Court will be hearing the case on Feb. 27, and more is at stake than just one monument. In fact, the Peace Cross represents a lot of what is good about America: It commemorates soldiers of different races and backgrounds. For instance, it recalled the service not only of Thomas Fenwick, who was a scion of one of Washington’s prominent families, and Essell Maxwell, descendant of Civil War veterans, but also the sacrifice of John Henry Seaborn, an African-American whose father was an illiterate laborer and who, Seaborn’s biography guesses, may have been born a slave.
Indeed, several men honored by the Peace Cross served in the “Red Hand Division,” which was a segregated unit placed under French command for the war. But on the memorial these men are united — and listed in alphabetical order. The soldiers shared 21 medals among them, including the Croix de Guerre and the Medal of Honor. For context, two months after the official dedication of this monument in 1925, 30,000 people marched in support of the Ku Klux Klan in nearby Washington, D.C. One could not see a starker contrast of the direction our civil religion could take and the darker paths that will, sadly, always remain a temptation for some. As a nation, however, we should be promoting those parts of our past that look forward. Just because we may not, in 2019, build a similar memorial, does not mean we should erase the memories of those who embody our best ideals.
This 2017 ruling, if allowed to stand, threats not just the Peace Cross, but religious monuments across all veterans’ cemeteries across the United States, including Arlington. It would rip the fabric of an important part of our civil religion — the common sacrifice of veterans for our country.
Instead, every grave marker would be turned into a potential constitutional violation, promising years of expensive and contentious litigation over every cross or Star of David planted in a federal cemetery. And it would do so in the name of a principle that is located nowhere in our constitutional history or practice.
Before the Supreme Court, the case may turn on the so-called “Lemon” test, named after a 1971 case that held that it was unconstitutional for the government to “endorse” a religion. The case established a three-part test that relies on subjective views as to whether 1) a particular program or monument fosters “excessively entanglement” of religion with government, 2) serves a legitimate government purpose, or 3) has a primary effect of inhibiting or promoting religion.
But in the almost half-century since the case, the Lemon test has caused no end of confusion. It has no anchor in actual historical practice and fosters no end of retroactive speculation. This situation is made even more absurd since the Supreme Court itself often does not follow Lemon, even though lower courts feel they must.
A better approach is the one put forth by Becket in a brief it filed Dec. 27 with the Supreme Court, which argues for a more objective historical approach. This approach would take into consideration the actual practice, usage and understanding of Americans at the time of the founding and would focus on clear interference by the government with the religious (or non-religious) practices of the citizens.
Such an approach would allow the Peace Cross, and similar monuments across the nation, to remain standing.
Gerald J. Russello is a lawyer in New York.