A 40-foot cross erected as a war memorial on public land in Bladensburg does not violate the constitutional separation of church and state and can remain standing, the U.S. Supreme Court ruled Thursday.
The cross, though associated with Christianity, serves an independent secular purpose when it is used to honor those who died in battle and has stood for so many years, the high court held, noting that the Bladensburg “Peace Cross” was dedicated in 1925.
The monument bears a plaque with the names of local residents who died during World War I.
The justices’ splintered 7-2 ruling overturns a 4th U.S. Circuit Court of Appeals 2-1 decision 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 Cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent,” Justice Samuel A. Alito Jr. wrote for a simple five-member majority of the Supreme Court.
“For some, that monument is a symbolic resting place for ancestors who never returned home,” Alito added. “For others, it is a place for the community to gather and honor all veterans and their sacrifices for our nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”
Alito was joined in the opinion by Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Elena Kagan and Brett M. Kavanaugh. Justices Clarence Thomas and Neil M. Gorsuch concurred in the judgment.
In dissent, Justice Ruth Bader Ginsburg said that the cross cannot be regarded as secular due to its status as “the foremost symbol of the Christian faith” and that displays of it on public land, even to venerate a nation’s war dead, violate the Constitution’s prohibition on governmental establishment, or promotion, of religion.
“As I see it, when a cross is displayed on public property the government may be presumed to endorse its religious content,” Ginsburg wrote in a dissent joined by Justice Sonia Sotomayor. “The venue is surely associated with the state; the symbol and its meaning are just as surely associated exclusively with Christianity.”
Maryland Gov. Larry Hogan hailed the high court’s decision.
“This is a great victory after we fought tirelessly to keep the Peace Cross standing in recognition of the valor, endurance, courage, and devotion of our World War I veterans,” Hogan said in a statement. “Today’s ruling ensure that this memorial – a dignified tribute to those who came before us and made the ultimate sacrifice – will stand tall and proud for the ages.”
The American Legion, which appealed the 4th Circuit’s decision to the justices, said the high court’s ruling was “not just about a single cross.”
“This was about the right of a community to honor its fallen heroes,” the legion’s national commander, Brett P. Reistad, said in a statement. “The American Legion does not consider these crosses, which honor so many veterans, to be religious memorials.”
He added that Americans “can feel more confident today that veterans memorials, cemetery headstones, and patriotic monuments throughout our country are safer as a result of this ruling.”
The Maryland-National Capital Park and Planning Commission, which also appealed the 4th Circuit’s ruling, said it was “extremely gratified that our legal battle to protect the community’s interest in this historic symbol prevailed.”
“In particular, I have been very hopeful that the court could achieve some consensus on an issue with a potential to become very polarizing, and that hope has been largely realized,” Adrian R. Gardner, the commission’s general counsel, said in a statement.
“So while some of the members arrived at the same crossroad using different paths, seven of the justices prolifically announced that the Bladensburg Peace Cross does not violate the Establishment Clause,” Gardner added. “That’s a big win for our community and this nation. The Peace Cross is something that brings our community together and now we have a Supreme Court decision that officially recognizes it.”
But the American Humanist Association, which advocates for a clear separation of church and state and challenged the cross’s constitutionality, said the ruling was a call to action.
“In the face of today’s decision, we must all pursue new avenues to bolster the First Amendment,” AHA Executive Director Roy Speckhardt said in a statement. “Our legislative effort will be redoubled as the American Humanist Association works to strengthen the wall of separation between church and state, brick by brick. And in the interim, our legal team will do what it can to narrow the breadth of this decision in courtrooms across the country.”
A plaque at the base of the cross 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 in 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 Legion and the Maryland-National Capital Park and Planning Commission repelled the American Humanist Association’s constitutional challenge in 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 “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.
The commission and the American Legion then appealed successfully to the Supreme Court.
“That the Cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials,” Alito wrote.
“It reminds the people of Bladensburg and surrounding areas of the deeds of their predecessors and of the sacrifices they made in a war fought in the name of democracy,” Alito added. “The Cross now stands among memorials to veterans of later wars. It has become part of the community.”
Alito’s opinion prompted concurrences by other justices.
Breyer, in a concurring opinion, stated that the separation of church and state’s purpose is to assure “religious liberty and tolerance for all,” to avoid “religiously based social conflict” and to permit religion and government to “flourish” in their separate spheres.
The creators of the Bladensburg Cross after World War I “acted with the undeniably secular motive of commemorating local soldiers; no evidence suggests that they sought to disparage or exclude any religious group; the secular values inscribed on the Cross and its place among other memorials strengthen its message of patriotism and commemoration; and finally the Cross has stood on the same land for 94 years, generating no controversy in the community until the lawsuit was filed,” Breyer wrote in the concurrence Kagan joined.
Kagan, in a separate concurring opinion, said that a monument’s history is a consideration in whether a religious symbol on public land complies with the separation of church and state but that the ultimate decision must be made on a case-by-case basis.
Kavanaugh, in a concurring opinion, said the constitutional separation of church and state is not violated if the challenged government-endorsed symbol is “not coercive and if it is rooted in history and tradition; or treats religious people, organizations, speech or activity equally to comparably secular people, organizations, speech or activity; or represents a permissible legislative accommodation or exemption from a generally applicable law.”
He added that “the practice of displaying religious memorials, particularly religious war memorials, on public land is not coercive and is rooted in history and tradition.”
Gorsuch concurred only in the court’s judgment, saying that the humanist group that challenged the cross’s constitutionality had no legal standing to bring suit because it had suffered no legally recognized injury but had merely been “offended” by the religious symbol on public land.
“In a large and diverse country, offense can be easily found,” Gorsuch wrote in a concurrence Thomas joined.
“Really, most every governmental action probably offends somebody,” Gorsuch added. “No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation.”
Thomas, in a separate concurrence, said the First Amendment provision barring the state from establishing, or promoting, a religion applies only to the federal government, not to the states. But even if the Establishment Clause did apply to the states, the cross would still pass constitutional muster because its presence as a memorial on public land does not coerce people into believing in Christianity, Thomas added.
The Supreme Court rendered its decision 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.