WASHINGTON – Attorneys defending a 40-foot cross erected as a war memorial on public land in Bladensburg told a seemingly divided U.S. Supreme Court on Wednesday that the monolith does not violate the constitutional separation of church and state, as a lower court has ruled.
The cross, though associated with Christianity, serves “an independent secular purpose” when it serves to honor those who died in battle, Neal K. Katyal told the justices on behalf of the Maryland-National Capital Park and Planning Commission. Katyal is with Hogan Lovells LLP in Washington.
Attorney Michael A. Carvin, representing The American Legion, said the constitutional separation remains intact because the cross does not coerce people into accepting Christianity but merely honors war dead. Carvin is with Jones Day in Washington.
On behalf of the Trump administration, acting U.S. Solicitor General Jeffrey B. Wall said crosses have served as memorials “since before the founding” of the United States and are secular symbols when used as memorials.
But those arguments of secularity drew little support from Justices Ruth Bader Ginsburg and Elena Kagan, who both called the cross the “preeminent symbol” of Christianity that, when used as a war memorial, places the sacrifice of Christian soldiers ahead of those who held other beliefs.
“People want to memorialize the dead,” Kagan said. “For members of other faiths that symbol is not the way to memorialize the dead.”
Justice Sonia Sotomayor interjected that the cross is such a profound symbol of Christianity that many Christians would, in fact, be offended by the argument that its use can ever be secular because to them “secularizing the cross is blasphemy.”
But Justice Brett M. Kavanaugh said the high court has upheld the constitutionality of other religious displays based on their secular symbolism, including the Ten Commandments.
Justice Stephen G. Breyer noted that many war memorials, like the Bladensburg Cross, harken to World War I, when the cross was widely used to represent groups of soldiers who died in battle regardless of their religion. Such a memorial, were it erected today, would be inappropriate in light of the many religious beliefs represented in the U.S. military and a greater recognition of that diversity, the justice said.
“History counts,” Breyer said. “But no more (such memorials). We are a different country now.”
The high court heard arguments by defenders of the Bladensburg “Peace Cross” who were appealing a 4th U.S. Circuit Court of Appeals decision that the symbol endorses Christianity in violation of the First Amendment’s prohibition on governmental “establishment,” or endorsement, of religion.
The path to the justices was cleared last March, when the full 4th U.S. Circuit Court of Appeals declined by an 8-6 vote to review the decision of a divided three-judge panel of the court that the monument is unconstitutional.
In its 2-1 decision, the 4th Circuit panel stated in October 2017 that the cross “has the primary effect of endorsing religion and excessively entangles the government in religion” in violation of the First Amendment.
“The Latin cross is the core symbol of Christianity,” the majority added. “And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds.”
The monument, dedicated in 1925, is referred to as the “Bladensburg Cross” and the “Peace Cross.” A plaque at its base lists the names of 49 local men who died in World War I. The cross is now part of a larger park that includes memorials to those who died in World War II and the attack on Pearl Harbor, as well as to veterans of the Korean and Vietnam wars. A garden honoring those who died on Sept. 11, 2001, was added in 2006.
The American Humanist Association, which believes in a strict separation of church and state, brought the initial constitutional challenge and defended the 4th Circuit’s decision before the justices on Wednesday.
By maintaining the cross as a war memorial, the government is violating the Constitution by telling non-Christians that “you are a lesser citizen,” Monica L. Miller, the association’s attorney, told the justices.
“The government is the mouthpiece for the sectarian symbol,” she said.
Miller distinguished the cross from the Ten Commandments, which she said can be displayed — as they are in the high court’s courtroom – as a “symbol of law” divorced from its religious roots.
The cross, by contrast, is “distinctly for Christians,” Miller said, adding, “There is no history of anyone using the Latin Cross to honor Jews, Muslims and atheists.”
Wall, the acting U.S. solicitor general, pressed the justices to focus on the cross’s secular meaning as a war memorial.
“Allow the cross to remain,” Wall said. “And allow those it honors to rest in peace.”
The Supreme Court is expected to render its decision by this summer in the consolidated cases, The American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association, Nos. 17-1717 and 18-18.
The Maryland-National Capital Park and Planning Commission and The American Legion repelled the American Humanist Association’s constitutional challenge in the U.S. District Court in 2015, as Judge Deborah K. Chasanow ruled that the cross at the corner of Route 1 and Annapolis Road does not violate the First Amendment’s Establishment Clause.
Chasanow applied the U.S. Supreme Court’s three-part Lemon Test to determine a religious symbol’s constitutionality and concluded that the cross has the “secular purpose” of memorializing the county’s war dead, does not have the “primary effect” of endorsing religion and does not foster “excessive entanglement” between the government and religion.
The 4th Circuit, however, agreed only that the cross has the “legitimate secular purpose” of serving as a war memorial.
The cross cannot be separated from its religious symbolism, the appeals court panel added, citing the Supreme Court’s 1971 Lemon v. Kurtzman decision.
“While the Latin cross may generally serve as a symbol of death and memorialization, it only holds value as a symbol of death and resurrection because of its affiliation with the crucifixion of Jesus Christ,” wrote Judge Stephanie D. Thacker, joined by Judge James A. Wynn Jr. “One simply cannot ignore the fact that for thousands of years the Latin cross has represented Christianity.”
The court also said that government is excessively entangled in the religious symbol, as the park commission owns and maintains the cross on public property, has spent at least $117,000 to maintain the cross and has set aside $100,000 for its restoration.
“Second, displaying the cross, particularly given its size, history, and context, amounts to excessive entanglement because the commission is displaying the hallmark symbol of Christianity in a manner that dominates its surroundings and not only overwhelms all other monuments at the park, but also excludes all other religious tenets,” Thacker wrote. “The display aggrandizes the Latin cross in a manner that says to any reasonable observer that the commission either places Christianity above other faiths, views being American and Christian as one in the same, or both.”
In dissent, Chief Judge Roger L. Gregory said the cross does not necessarily endorse religion when used to memorialize war dead.
“(A) reasonable observer would understand that the Memorial, while displaying a religious symbol, is a war memorial built to celebrate the 49 Prince George’s County residents who gave their lives in battle,” Gregory wrote. “Such an observer would not understand the effect of the commission’s display of the Memorial – with such a commemorative past and set among other memorials in a large state park – to be a divisive message promoting Christianity over any other religion or non-religion.”
The cross does not excessively entangle government in religion because the commission’s support and upkeep of the symbol are “not a promotion of any religious doctrine, as the Memorial is a historical monument honoring veterans,” Gregory added.
The dissenting judge noted another, albeit smaller, memorial on the grounds that mentions the “valor, courage and devotion” of the 49 soldiers killed in World War I.
“I cannot agree that a monument so conceived and dedicated and that bears such witness violates the letter or spirit of the very Constitution these heroes died to defend,” Gregory wrote.