The Supreme Court, with newest Associate Justice Brett Kavanagh, will hear a landmark First Amendment case on Wednesday, Feb. 27, when they consider whether a historic World War I monument in the shape of a cross is unconstitutional.

 

What is the Bladensburg Cross?

The Bladensburg Memorial, also known as the “Peace Cross,” was designed in 1919 by a group of Gold Star Mothers from Bladensburg, Maryland, to honor their sons, 49 Bladensburg-area servicemen who gave their lives in World War I while serving in the U.S. Armed Forces. Six years later, construction of the 40-foot cross was completed by a local post of the American Legion. To the bereaved mothers, the cross seemed the best way to commemorate their sons – recalling the crosses marking countless American graves in Europe, where so many U.S. soldiers fell while fighting for peace. The names of Bladensburg's fallen heroes are engraved on a large bronze plaque on the base of the monument. Inscribed on the plaque, above the soldiers’ names, is a tribute:

This Memorial Cross Dedicated To The Heroes of Prince George's County
Who Gave Their Lives in The Great World War For The Liberty Of The World

For nearly a hundred years the Bladensburg Memorial Cross has stood in silent tribute to the men who fought and died that America may be free. Then in February 2014, the American Humanist Association filed suit, alleging that the cross-shaped memorial is a symbol of religion, not merely commemoration. They argued that permitting the cross to stand on public land violates the Establishment Clause of the First Amendment, and demanded that the monument be removed, altered or demolished. One solution proposed by the AHA is to lop off the arms of the historic cross, thus reshaping it into a “non-offensive” obelisk.

The case has moved forward in the courts with mixed results. In November 2015, the U.S. District Court for the District of Maryland ruled in favor of the memorial. The American Humanist Association appealed that decision to the U.S. Court of Appeals for the Fourth Circuit, where a three-judge panel reversed the lower court's decision by a 2-1 vote. A motion for the Appeals Court to review the decision en banc was defeated 8-6, with multiple dissenting statements. Finally, the case heads to the Supreme Court this week, where the justices will hear two joined cases: The American Legion, et. al. v. American Humanist Association, et. al. and Maryland National Capital Park and Planning Commission v. American Humanist Association, et. al.

 

If the Bladensburg Cross Is Deemed Unconstitutional, Then These Great Works May Have to Go

If the Supreme Court permits atheists to succeed in bleaching faith from the public square, then a long list of government monuments stand to face the same fate. Beginning with the declaration “In God We Trust” which is prominently displayed in the U.S. Capitol in both the House and Senate chambers, dozens of references to America's religious foundation are at risk of demolition.

In the rotunda of the U.S. Capitol, paintings depict the prayer service of Christopher Columbus, the baptism of Pocahontas, and the prayer and Bible study of the Pilgrims. Visitors to the Cox Corridor of the Capitol see “America! God shed His grace on thee” – words from Katharine Lee Bates’ patriotic hymn “America the Beautiful” – inscribed above a doorway. At the east Senate entrance, the Latin phrase “Annuit Coeptis” (God has favored our undertakings) is inscribed.

The Ten Commandments, the display of which has been challenged in lawsuits across the country, remain ensconced in many buildings in our nation’s capital, including the Supreme Court – where the Commandments appear in the frieze above the Justices. The Decalogue can also be found in bronze on the floor of the National Archives, and in the Main Reading Room of the Library of Congress.

Numerous memorial blocks on the Washington Monument contain Scripture verses or religious messages. The Latin inscription “Laus Deo” (Glory to God) is engraved on the capstone of the monument.

On the Jefferson Memorial, the words of Thomas Jefferson himself have been carved. Jefferson's messages are frequently religious, including his declaration that

“God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God? Indeed I tremble for my country when I reflect that God is just, that His justice cannot sleep forever.”

And Abraham Lincoln? President Lincoln was deeply religious, and the monument which bears his name also bears numerous references to God and to the Scriptures. “We here highly resolve,” Lincoln said, “that … this nation under God … shall not perish from the earth.” “Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.” (Matthew 18:7) Also at the Lincoln Memorial is the oft-quoted passage from Isaiah 40:4-5 from a speech by Martin Luther King, Jr.:

“one day every valley shall be exalted and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight and the glory of the Lord shall be revealed and all flesh see it together.”

Despite the demands of atheists that America be declared a faith-free zone, our spiritual heritage is visible in our nation's capital, in our government buildings both national and local. If the Supreme Court permits the American Humanist Association to bully the town of Bladensburg into erasing the memory of its fallen because of a simple cross shape, then hundreds of America's historic monuments are at risk.

 

The Supreme Court's Mixed Messages on the Establishment Cause

It's difficult to know how the Supremes will rule on the Bladensburg cross, because the Court's interpretation has been offered on a case-by-case basis, with varying results. This week, the Federalist Society invited legal expert Haley Proctor, an attorney with Cooper & Kirk who clerked for Justice Clarence Thomas in 2014, to address representatives of the media by phone to explain the high court's rulings on recent religious liberty cases. Proctor quoted Supreme Court Justice Clarence Thomas, who complained that “under the Court's decisions, the constitutionality of displays of religious imagery on government property is anyone's guess.”

As an example, Proctor said, “On the same day in 2005, the Supreme Court decided two cases involving challenges to displays of the Ten Commandments. It found one display constitutional and the other display unconstitutional.”

In another decision in 1989, Proctor reported that the Court held that the County of Allegheny, Pennsylvania could display a menorah and Christmas tree on county property, but not a Nativity scene. But just five years before that, the Court had ruled that the city of Pawtucket, Rhode Island could erect its own Nativity scene.

Why the apparent conflict? Proctor explained that it is usually the “Lemon Test” that guides courts in deciding cases which have something to do with church and state. The Lemon Test forbids government from endorsing any particular sect or denomination. Under Lemon, there are three points which must be met, Proctor explained:

“The government action must have a significant secular purpose, cannot have a primary effect of advancing or inhibiting religion, and must not foster an extensive entanglement between government and religion.”

In addition, courts sometimes add to the Lemon Test the Endorsement Test. The test, Proctor explained, “asks the court to stand in the shoes of a reasonable observer who supposedly knows all the facts about the context and the history of the government action at issue, and from the perspective of that reasonable observer, to decide whether the government action appears to have a purpose or effect of endorsing religion.”

In its amici curiae brief, the American Legion – which is fighting for the Peace Cross – advocates for another standard: coercion. The American Legion, Proctor says, “takes square aim at Lemon and the Endorsement Test, arguing that coercion rather than endorsement is the touchstone of the Establishment Clause as it was originally understood. The American Legion argues that the Peace Cross is constitutional because it does not coerce the acceptance of any creed or the practice of any form of worship.”

Asked whether the Court's scattershot rulings over the decades regarding religious displays have been harmful, Proctor said yes. The most harmful aspect, she concluded:

“It makes the law unpredictable. And it leads to a lot of litigation over practices. And then sometimes, it leads local, states and even the federal government to discontinue practices that might be constitutional simply to avoid the threat of litigation.”