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Religion or remembrance? Supreme Court to mull cross-shaped war memorial

The 40-foot Peace Cross stands at an intersection in Bladensburg, Md., northeast of Washington, D.C. RNS photo by Adelle M. Banks

BLADENSBURG, Md. — To Steven Lowe, who drives past it routinely, the nearly century-old, 40-foot concrete structure in the middle of a traffic circle plainly is a Christian cross, a religious symbol the American Humanist Association argues doesn’t belong on government property.

To Mary Ann LaQuay, the “Peace Cross” that bears the name of her late uncle, Thomas N. Fenwick, and 48 other men who died in World War I, is “not a symbol for religion. It’s a symbol for remembrance.”

Soon the Supreme Court will decide who is right.

Erected just outside Washington, D.C., by the American Legion more than 90 years ago, the cross — also known as the “Bladensburg Cross” — is the center of a lawsuit the association filed in 2012, arguing the cross’ location is unconstitutional.

Three years later, a district court ruled against the humanists, saying ownership of the cross by the Maryland-National Capital Park and Planning Commission, which acquired it when it took over the traffic circle in 1961, is appropriate because it maintains the highway median.

But the 4th U.S. Circuit Court of Appeals reversed the lower court’s decision in 2017, ruling that the monument had “the primary effect of endorsing religion and excessively entangles the government in religion.”

On Wednesday (Feb. 27), the case will be heard by the Supreme Court.

Some say the “passive” monument, dedicated in 1925, is not coercing anyone to believe in Christianity. Others say it inappropriately links American patriotism to one faith despite the religious diversity of the country.

“I think it’s wrong to have government favoring or representing itself as any one religion,” said Lowe, a plaintiff in the case and a Methodist-turned-humanist who lives less than four miles from the cross.

But LaQuay, whose mother was one of the Gold Star Mothers who pushed for the monument, says she can’t imagine the cross not staying where it is, as it is.

“It would be a sacrilege to do anything to it, to move it, to change it, to do anything,” said LaQuay, who still lives nearby. She said she thinks of her uncle when she passes by the memorial. “That to me is where my uncle is buried even though his body is not there. His spirit is there with all these other men.”


RELATED: ‘Peace Cross’ is unconstitutional, court rules


Though the case is the latest touching on religion to reach the high court, the upcoming arguments hearken back to previous legal wrangling over Ten Commandments displays that proliferated across the country decades ago, according to Howard Friedman, founder of the Religion Clause blog.

The Peace Cross plaque in Bladensburg, Md., features the names of soldiers who died during World War I. RNS photo by Adelle M. Banks

In those cases, as in this one, supporters of the displays argued that they were “passive,” while opponents said they violated the First Amendment’s Establishment Clause. In 2005, the court issued split decisions on two Ten Commandments cases, leaving the way unclear for the Bladensburg case.

Particularly vexing will be the remedy if the cross is found to be a breach of the First Amendment’s Establishment Clause. “There was some suggestion — why don’t you just knock the two arms off the cross?” said Friedman, an emeritus law professor at the University of Toledo. “That doesn’t sound like much of a remedy to me but maybe it is. Could it be transferred to private property? Do you have to knock it down?”

Lowe advocates cutting off the cross’ arms to “turn it into a pillar,” though he admits that option is “rather drastic.” He also suggested that it could be moved to private property or removed altogether.

Jeremy Dys, a lawyer representing the American Legion, said he is concerned that if the Supreme Court declares the Peace Cross unconstitutional it could lead to calls for the removal of other monuments featuring crosses.

“If the 4th Circuit decision is allowed to stand, it puts at jeopardy memorials just like it all over the country,” said Dys, deputy general counsel of First Liberty Institute, which is working with Jones Day lawyers on the case. “And it’s going to start not only with a bulldozer at Bladensburg, but that’s going to roll across the river there to Arlington National Cemetery.”

The military cemetery includes two World War I memorials, the Argonne Cross and the Canadian Cross of Sacrifice. The acting solicitor general of the United States will be one of the lawyers arguing in favor of the cross’s constitutionality during the 70 minutes allotted for the court’s consideration.

Monica Miller, who will argue for the American Humanist Association, said a ruling for the Bladensburg Cross would not doom other cross-shaped monuments.

“The Supreme Court has been very clear that when it evaluates religious displays it does so in the context of that one display,” she said. “For instance, when it strikes down a Ten Commandments like it did in the McCreary County (Ky.) case, it didn’t say all Ten Commandments have to come down.”

Miller, the AHA’s senior counsel, pointed to California cases involving crosses on Mount Soledad and in the Mojave National Preserve, in which the land underneath the memorials was transferred to private ownership.

She said that, of all the cases where memorial crosses were found to be unconstitutional, she could only confirm that one — a 35-year-old, 37-foot cross at an Army barracks in Hawaii — was dismantled.

The 40-foot Peace Cross in Bladensburg, Md., was dedicated in 1925 as a World War I memorial. RNS photo by Adelle M. Banks

The Maryland commission that maintains the Bladensburg Cross called the memorial “a centerpiece of one county’s civic life” and asked in its brief that the high court overturn the “gravely incorrect decision” by the appellate court.

Religious groups, filing among the dozens of amicus, or friend-of-the-court, briefs, have asked the court for clarity on interpreting the long-debated Establishment Clause and have argued for and against the appropriateness of the cross on government land.

“Maintaining a nearly century-old war memorial at a busy intersection is hardly an official declaration in law that Christianity is the government’s preferred religion,” wrote a coalition including the National Association of Evangelicals and the Church of Jesus Christ of Latter-day Saints.

But the Anti-Defamation League and Americans United for Separation of Church and State maintain that government displays of crosses at veterans’ memorials “is deeply hurtful and exclusionary to the countless non-Christians who have died in service to our Nation.”

The Baptist Joint Committee for Religious Liberty argued that erecting additional “government crosses” would be “religiously divisive” and added, “If the Bladensburg Cross is allowed to remain, the sole reason should be that it is grandfathered.”

Howard Friedman participates in a panel at the Religion News Association conference on Sept. 15, 2018, in Columbus, Ohio. RNS photo by Kit Doyle

The Utah Highway Patrol Association, which has had to remove some of its memorial crosses from state land, argued in its brief for maintaining the long tradition of using crosses to note sacrifice and tragedy: “If anything, it would be an establishment of irreligion to exclude their use.”

Friedman, the legal analyst for Religion Clause, said a decision declaring the cross unconstitutional could prompt pressure to take down others, while a ruling saying it is constitutional could lead to campaigns to put up more of them.

“The problem is that, whichever way it comes out,” he said, “you’ve got groups that are going to be pushing the envelope.”

About the author

Adelle M. Banks

Adelle M. Banks, production editor and a national reporter, joined RNS in 1995. An award-winning journalist, she previously was the religion reporter at the Orlando Sentinel and a reporter at The Providence Journal and newspapers in the upstate New York communities of Syracuse and Binghamton.

132 Comments

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  • The close-up photo of the monument in this article shows that it is falling apart. The arms of the cross are being held by metal cords and part of the stonework on the right of the picture is cracking. Perhaps the cross could be replaced by something less controversial before it falls apart.

  • If it was wood we could get rid of it the MAGA way – burn it. (joke)

    Before everyone gets revved up the correct answer will come from SCOTUS. All we can offer are opinions.

    If it was just a cross, I say tear it down. Since it is a war memorial with engraved names it should be spared. Removing the arms will work. I’m not bothered by it. Grandfather it in.

  • Yes, Jesus was crucified but the rest of the story is so embellished and mythicized that it takes significant brainwashing to believe. The cross is however a significant symbol of man’s inhumanity to his and her fellow human beings especially during wars. This being the case, this cross should stand with additional signage about the horrors of war.

  • It’s pretty hard to argue that a memorial erected in 1925, 94 years ago, which until recently excited zero comments is “pushing the envelope”.

    The SCOTUS will probably leave the memorial alone after a session which begins “God save this honorable court” after hearing oral arguments in a Court chamber with the Ten Commandments sculpted in the marble friezes on the upper walls.

  • The humanists are gonna lose this case and a lot of others. What was once a growing movement to keep all religion out of government is going to become a judicial movement for protecting religion from humanists. Regrettable, of course, but this was the price paid for some humanists thinking in 2000 that Gore wasn’t good enough—-had to be following a Nader type. It is also the price paid for some humanists who thought Hillary was not good enough and who declined to show up because the nominee was not Bernie. Two elections BARELY lost on tiny margins are throwing a lot away. OF COURSE we blame right-side wingnuts—–but—–humanists need to coalesce if they believe in humanism. Not there yet.

  • Yes. YOu make two good points — elections matter in a big way AND poor;ly chosen cases brought up on appeal inevitably make for bad precedents that take very long to overturn and cause much damage in the interim.

  • The cross must come down, and with a cry of joy. It is not a memorial to those killed in World War One. It is a symbol of torture and death of a human being. It is in effect, Christianity’s insane way of continually reminding believers of Mr. Christ’s untimely demise.

  • Can one take “poor;ly chosen cases brought up on appeal inevitably make for bad precedents” as code for be careful what you ask for?

  • These are the things that we lefties were supposed to have noticed and prevented before the fact—–but—–we didn’t. Barely didn’t, right here in the most recent two decades. I’m an old guy who now believes that being on the older end of life is now probably better than being on the younger end at this moment in time. The hopes and expectations in life and society for the majority of young people are being dialed back. Some know. Some don’t. But the rising population, climate change, authoritarianism, and artificial intelligence are all big trends—–and all mismanaged. The USA was supposed to lead, of course, but oops, the philosophy here is going backward.

  • “Mr. Christ” ???

    or perhaps mr. pharoah or mr. lieutenant . if you are going to critique something you should have a clue as to what it is .

  • This was a local monument built by a private organization and later taken through eminent domain. The government should not be in the business of forcibly buying up monuments with religious symbolism and tearing them down.

    The easiest solution would be to give the monument and the land directly under it back to the veterans group that originally built it. Or easier yet, just treat it as a historic monument that doesn’t promote a specific religion.

  • there is a image representing moses among many other lawgivers in the frieze on the upper walls . he is holding two blank tablets . there is no ten commandment sculpted or otherwise displayed anywhere in the supreme court building, in or out . ever .

  • The metal cords are just holding on that tarp. There is nothing to suggest the monument is falling apart. The thing probably has rebar in it, making it nearly indestructible, no matter how aged the surface concrete gets.

  • there is much to suggest that the monument has major problems . the recent tarp seems to be covering the top to prevent more cracking and flaking of the surface . rebar inside will hold the inside together, not the surface which holds the symbols and text which gives meaning to the monument .

    https://www.washingtonpost.com/resizer/FmQUwTCz03rhu1jbJeUQWf6MWxQ=/1484×0/arc-anglerfish-washpost-prod-washpost.s3.amazonaws.com/public/QNBN2HEYMEI6LNEZO3F6YFQZOM.

  • That link seems to be corrupted. Looking up articles related to the Cross on Washingtonpost didn’t reveal any that suggest structural weakness though.

    The big problem is with it being a cross. It will take intentional effort and heavy equipment to change that shape.

  • “The easiest solution would be to give the monument and the land directly under it back to the veterans group that originally built it. ”

    Makes sense. They built it, they can maintain it as well. All with private money.

  • thanks for pointing the problem with the link out . the photo is off the article . i naively thought that i could link to the photo directly :

    https://www.washingtonpost.com/local/public-safety/towering-cross-shaped-monument-on-public-land-is-unconstitutional-court-rules/2017/10/18/b26e4afe-5b47-11e7-9b7d-14576dc0f39d_story.html?noredirect=on&utm_term=.8cda5af1b85f&wpisrc=al_alert-local&wpmk=1

    as a major part of the defense of the cross is that it is a memorial to the dead of world war i, the problem of the surface is that the argument made in court is crumbling before our eyes .

  • Used my free views looking for the article. XD

    But you are basing this on a photo, not actual text? That seems like a leap.

    It was built as a memorial for the locals who died in World War I. That fact isn’t really being debated, as much as its relationship with the first amendment. The first court unanimously bought the logic, while an appeal got a majority against the Cross on a somewhat confused basis. That is hardly “crumbling.”

  • Yeah, it’s going backward for now. But, I think that it will turn around — again. Progress is not in a straight line, but I think that many things are better than before.

  • Thanks. Last week I was thoroughly berated at LawyersGunsMoney site for expressing a bit of skepticism that Kamala Harris is best choice to win a general election in our electoral college setup. Several of them were quite mad at me for suggesting we should wait for the entire Dem field to appear. I was routinely blasted on lib sites in the past for noting that without Ralph Nader we would have skipped G.W. Bush, his tax cuts and his SCOTUS nominees. The left is quite prone to fracture, unfortunately.

  • You’re right. It always has been. The people on the far left can be very doctrinaire. It seems to me that each group of young people acts as if they were discovering the world anew. The problem with that approach is that there is not much continuity or progress. Those who make actual progress are those who are able to have conversations with others in which they hear others and are willing to and able to make compromises, all the whil knowing what ought not be compromised…..

  • It’s really tricky to talk to people who (by their mindsets) SHOULD be “talked down to” without ever letting them feel they were “talked down to”. Obama pulled it off twice with both a good chunk of the far left and a good chunk of the middle. Not everyone has those talking skills.

    You should know that I am in sympathy with most everything promoted by the “far left”, just not the tactics by which it loses elections on narrow margins.

  • kronzypantz: The local government was discussing spending $100,000 on repairs when they found out that the cross is basically beyond repair at this point. The discussion of another $100k worth of taxes, which functionally turns our tax dollars into a government imposed religious tithe, drew the attention of The AHA. Forcing citizens to pay for a religion imposes upon their religious rights and this monument is endorsing one religion, which is a violation of The Establishment Clause.

  • FriendlyGoat: I’m not aware of “a growing movement to keep all religion out of government” in The US. Are you attributing this to The AHA? They are addressing a sectarian display that falls on the wrong side of The Lemon Test. If a private interest pays to move it to private property then there wouldn’t be an issue.

  • Jim Johnson: I’ve also suggested removing the arms, but many people push back without any justification. I suspect they’re dancing around admitting an interest in government endorsement of their favorite mythology.

  • Spuddie: I’ve heard that there’s an issue with it being a part of the road design and inaccessible to pedestrians eliminating that option. Even if that weren’t an issue, to avoid making it a sweetheart sale the government would need to sell it at auction or some other impartial method.

    If the Hobby Lobby family or some other group is willing to buy it at auction and relocate it to private property, that might work.

  • moresteps: Beat me to it! Where are all of these people getting this erroneous information? Is this another lie that WallBuilders puts out to confuse their followers?

  • I am lamenting that all of the SCOTUS decisions supporting the idea of separation of church and state are likely in the past, and that new decisions chipping away at that largely-judicial construction are likely in the future. When speaking of a “growing movement to keep all religion out of government”, I was speaking of America’s basic direction on this issue since, say, about 1960. My sense of this is that we are suddenly in a bigger turnabout than anyone thinks. The hope for such a judicial about-face on the part of some conservatives, anyway, seems to me to be the energy which elected Trumpism. As he says about so many things, “we’ll see what happens”. We have to understand that Constitutional originalism and judicial textualism are big code-words for reversing precedents.

  • I keep seeing that number cited as “maintenance and repair” of the cross and land, but haven’t seen a source for it. This is also the first time I’ve seen anyone claim the cross is in disrepair. $100,000 over the course of 50 years could simply be for the groundswork on the greenery around the cross. The few mentions I have seen about a further $100,000 make it sound like a fund for future maintenance, not an immediate and necessary expenditure.

    Also, the maintenance cost itself seems secondary. The two articles from the AHA that they’ve put out separately claim that the government should not build a religious symbol (a falsehood in this situation) and that it is exclusionary of Jewish casualties from the Baltimore area (an odd claim, since it includes all the casualties for its county.)

  • Its not that inaccessible if they can do groundswork on the flower beds and grass, as well as have yearly WWI remembrance ceremonies there.

    The government could sell it fair price if they want. You seem to think it is in desperate need of repair, so a fair price would probably be free. The government didn’t pay to build the thing anyway.

    They could also sell it back to the veterans organization they took it from originally. That is fair.

  • FriendlyGoat: Unfortunately a plethora of actions by various government agents have been chipping away at those decisions, setting a “look the other way” standard in many places when government resources and/or authority are using for religious endorsement and advancement.

    We have to understand that Constitutional originalism and judicial textualism are big code-words for reversing precedents.

    Agreed. I’ve long held the opinion that “Constitutional originalist” is a code word for Neo-conservative bias.

  • kronzypantz:

    You seem to think it is in desperate need of repair,

    You seem to have reading comprehension issues. I’ve explained that assessments by the local government, not I, have decided that the cross is beyond repair, which is different from “desperate need of repair”.

    They could also sell it back to the veterans organization they took it from originally. That is fair.

    Sure. Just have them pay to move it as the grounds are normally not accessible unless traffic is adjusted.

  • “We have to understand that Constitutional originalism and judicial textualism are big code-words for …” the Constitution as it was written, not as you, your friends, and Edd Doerr wishes it had been written.

  • kronzypantz: Have you tried a search engine? There are several news sites that detail the earlier repair work in 1985 that cost $100,000 with another $17,000 shortly after. What I referenced is a proposed $100,000 for the current damage, but that was in the process of being scrapped as the cross has been deemed beyond repair.

    Also, the maintenance cost itself seems secondary.

    In a way, but it is a violation of citizen rights as I explained earlier. One of several reasons The AHA is taking action.

    (an odd claim, since it includes all the casualties for its county.)

    Can you cite a source for this claim?

  • Mark Connelly: I personally drove past this monument many times, assuming it was on private property. Its status was brought to the attention of The AHA because of the repair work that was being planned at taxpayer expense.

    Also, you really need to correct that error regarding Moses that @moresteps:disqus corrected.

  • kronzypantz: No. They shouldn’t be in the business of hosting and repairing them either. Doing so violates The Establishment Clause and the religious rights of citizens.

  • If it was taken for a secular purpose, then it does not. In this case, it was a war memorial and historic land site that was taken as part of road construction. It is neutral.

  • kronzypantz: The land purpose is secular. The monument is obviously sectarian.

    What’s your agenda here? It seems to be government endorsement of a religion.

  • The pediment of the Supreme Court building depicts Moses holding 2 blank tablets. The south wall frieze of the courtroom, to which Mark refers, depicts Moses holding two overlapping tablets with commandments 6-10 visible.

    Why would you throw out such an insubstantial objection as this?

  • If this cross is removed what’s to prevent the demanding the removal of all religious imagery in government owned cemeteries?

  • Religion, specifically Christianity, in government, business and public policy would a great thing if the Christianity was boiled down (as it should be) to an implied obligation for all entities to tell a best-known truth about tangible matters and an obligation for all parties to actually abide by a Golden Rule concept. History has shown that most religionists are not the least interested in being so obligated. For the most part, that spirit only occurs in a pure form with secularists—–and only a certain subset of secularists.

  • Yes, I’ve looked the Wapost, Baltimore sun, the AHA articles themselves, CNBC, USA today, even the Washington Times. I have yet to find an actual citation from city records and what exactly the expenditure was for.

    Most historic monuments are exempt from such considerations. We don’t deface religious symbols on things like forts and other historic buildings to be neutral.

    As for who the Cross was originally built to remember, this Baltimore Sun article gives it as “the cross honors 49 Prince George’s County residents who died in World War I.” I believe this is referenced from the plaque on the cross’s base, but I haven’t found a great picture. https://www.baltimoresun.com/news/maryland/politics/blog/bs-md-bladensburg-peace-cross-20171018-story.html

    This AHA article says that the Cross is purposefully exclusive for not including Jewish soldiers from the greater Baltimore area. https://thehumanist.com/commentary/the-forgotten-fallen-jewish-soldiers-left-off-original-bladensburg-cross

    The greater Baltimore area does not include Prince George’s county. https://en.wikipedia.org/wiki/Baltimore_metropolitan_area

    The AHA is just throwing around accusations of anti-Semitism at this point, seeing what argument will stick, if any.

  • I just don’t want the government in the business of destroying or defacing historic landmarks and symbols built by private entities.

    It was originally created for the secular purpose of remembering local war dead. Many of those represented by it do not even have graves in the US, as their bodies were lost.

    This seems tolerable. The government didn’t build it, and even took it by eminent domain for secular purposes.

  • Does it pass the casual observer test if you passed it so often and never assumed it was a government endorsement of religion?

  • It depends whether one is talking about the “far left” or the far left. I don’t think that anyone who runs for president is close to being on the far left. The majority of the Democratic candidates are slightly left of center, but given the massive shift to the right over the last several decades, many who are in the actual political center are often described as “socialist”.

    I prefer people who are willing and able to “talk with”. The “talking down to” bit makes me uneasy, because it has the potential for so many bad things.

  • kronzypantz: I’m not aware of a “casual observer test” that would somehow invalidate it’s status on government property and the related violation of The Establishment Clause.

  • kronzypantz:

    It was originally created for the secular purpose of remembering local war dead.

    Don’t forget the sectarian purpose of focusing on their religion.

    The government didn’t build it, and even took it by eminent domain for secular purposes.

    Yet there still remains an existing conflict. The source of the entanglement is an issue worth untangling, but that doesn’t change the fact that a religious monument has been hosted and funded by our government at the expense of tax payers.

  • Supporters of the cross on government property assume the Christian cross is a universal symbol of tribute to all fallen soldiers. This is Christian privilege on full display. A Latin cross, as the preeminent symbol of Christianity, can’t possibly honor all veterans. Crosses honor only some veterans – those presumed to be Christian.

    To circumvent the Establishment Clause, defendants have argued the cross is a “secular symbol” lacking religious significance – a version of Peter denying Jesus. The other argument is that the cross gets a constitutional pass because it is historically significant and represents the values of all Americans. This is a combination of Christian conceit and bearing false witness.

    Taxpayer funds should not be used to maintain what amounts to a 40-foot advertisement for Christianity.

  • kronzypantz: Have you tried contacting the local government or the reporters to find out more about the expenditures?

    Regarding monuments, what is historic about this other than as a sectarian marker for war dead. It’s not a fort associated with any battle, as you referenced.

  • FriendlyGoat: The Enlightenment was an effort to boil down those good qualities that all religions strive for. The issue with any religion seems to be the thirst for power that develops when a faith is married to government, allowing those in positions of power to impose laws by referencing an unverifiable higher authority.

  • Mark Connelly: Nor as conservative activists wish it had been written either. Scalia undermined his own claims of originalist thinking in several decisions.

  • Shawnie5: Accurate correction! I was getting the external and internal depictions mixed up in my memory. The 6th to 10th shown because they are the least religious, more general rules of any successful society.

    Why would you throw out such an insubstantial objection as this?

    Probably because Mark Connelly made an equally pointless assertion in the first place.

  • Well, you’re correct on two levels. For me, “talking down to” means telling people the most basic things that they (we) are supposed to know already but often don’t. Talking down to people about health insurance, for instance, might mean somehow explaining to them (us) that health insurance from any private source means that the insurance company HAS TO make money. It HAS TO somehow charge premiums that are a greater amount in total than all the claims it is going to pay out, plus some more for marketing, administration and profit. Otherwise, any private insurance company is soon broke and cannot pay any claims at all. All of us should know, for instance, that a health insurance policy which costs $100 per month cannot expose the insurance company to medical claims which average more than about $900 a year (which does not buy very much medical care, of course). But many of us do not seem to know this, or refuse to think about it.

    Regrettably, “talking down to” people can also be used to convince people of things which are not true. Our opposition does this all the time and its fans do not even know they are being “talked down to”. This is why they can be in a snowstorm and appreciate a tweet from their president suggesting that being cold somewhere today is why there is no such thing as global warming. It can also be used to tell people that everything in the Bible is “God’s Word” when it isn’t and never was. It can be used to convince people that high-end tax cuts create living-wage jobs when reality is the opposite.

    As for center, center left and far left, well, most Democrats who have any experience in government understand that far left is idealism which usually cannot be delivered. Right now, we would be lucky to actually enact “centrist” anything.

  • You refer to “the Constitution as written.” And it is clear the founders created a Constitution that separated religion and government and used such language as “wall of separation between church and state”, “total separation of the church from the State”, “separation between religion & Gov’t in the Constitution”, “perfect separation between the ecclesiastical and civil matters”, “the line of separation between the rights of religion and the civil authority”, and so forth, to describe what they had achieved.

    The Supreme Court followed suit as early as Reynolds v. United States (1879) by arguing that Jefferson’s writings concerning a wall of separation between church and state “may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment.”

    So much for “Constitutional originalism and judicial textualism.”

  • If religion was so good, we might wonder whether or why it ever needed to be “Enlightened” at all. Today, we should be wondering whether is was possible for religion to be “Redarkened” in as late an age as the crossover from 20th to 21st century—-EVEN AS we see that obviously taking place in such things as ISIS (at an extreme), to Iran (only slightly less extreme for 40 years running), to Russia (where religion elected Putin), to America (where religion elected all the present lies of Trumpism). We are nowhere near as “enlightened” right now as any reasonable extrapolation of trends from the mid-20th Century would have projected us to be by now. Religion has us in reverse gear suddenly.

  • I’ve not gone that far yet. Its not on their current budget for this year, but they might just have that in committee limbo until things are decided one way or the other.

    Its a 90 year old monument to the dead of the county.

  • “Don’t forget the sectarian purpose of focusing on their religion.”

    Yes, just as a grave marker other soldiers would also have a symbol of their religion.

    “Yet there still remains an existing conflict.”

    Apparently there wasn’t a conflict until the Humanist Association stepped in in 2014.

    “The source of the entanglement is an issue worth untangling, but that doesn’t change the fact that a religious monument has been hosted and funded by our government at the expense of tax payers.”

    We can’t really unring that bell if this is an unconstitutional entanglement. The government stepped in and took the monument by eminent domain. The entanglement has already happened. If the monument is destroyed or desecrated, then the government has actively involved itself in religion to take a religious symbol and harm it. That would not be a neutral act.

  • “It simply recognizes the fundamental difficulty inherent in focusing on actual people: there is always someone who, with a particular quantum of knowledge, reasonably might perceive a particular action as an endorsement of religion. A State has not made religion relevant to standing in the political community simply because a particular viewer of a display might feel uncomfortable.”
    https://www.law.cornell.edu/supct/html/94-780.ZC1.html

    Its part of a SCOTUS decision written by Sandra Day O’Connor that some of the articles on this topic mention. It has to do with a symbol being commonly identified as a state endorsement of religion, rather than just a few especially knowledgeable people raising concerns.

  • The vast majority of veteran memorials on public land in the United States are secular. Memorials to American war veterans take the form of statues, obelisks, arches, gardens, fountains, plaques, and other similar structures. Gravestones in public cemeteries (such as Arlington National Cemetery) do not constitute a government endorsement of religion. The grave markers are all shaped exactly the same – a RECTANGLE curved at the top, not a Christian cross. There is space on each individual marker that can be engraved with a religious symbol chosen by the family. The gravestone options individually represent the private religious beliefs of the persons buried there, and those symbols are chosen by family members of the deceased, not the government.

    There is no comparison between families selecting a symbol on a headstone that represents the beliefs of their deceased relative and the government maintaining a 40-foot tall Christian cross and pretending it represents all fallen soldiers. See, it is possible to honor the fallen on public land without violating the Constitution.

  • “You refer to ‘the Constitution as written.”

    Indeed, the Constitution was written, in English by the way.

    “And it is clear the founders created a Constitution that separated religion and government and used such language as ‘wall of separation between church and state’, ‘total separation of the church from the State’, ‘separation between religion & Gov’t in the Constitution’, ‘perfect separation between the ecclesiastical and civil matters’, ‘the line of separation between the rights of religion and the civil authority’, and so forth, to describe what they had achieved.”

    For those who can remember that the Constitution was written, here is the sole reference to religion in the body of the document itself:

    “Article. VI.”

    “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

    In the Amendments here is the sole reference to religion:

    “Amendment I”

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.“

    Completely absent are the words “separated” or “separation and “wall”.

    If Constitutional originalism and judicial textualism is significant, that means something important.

    The comment in Reynolds v. United States was dicta.

    https://www{DOT}law.cornell.edu/search/site/dictum

    “dictum may be cited in a legal argument, it is not binding as legal precedent, meaning that other courts … are not required to accept it. Dictum is an abbreviation of the Latin phrase “obiter … dictum,” which means a remark by the way, or an aside.”

    Jefferson’s comment was made eleven years after the First Amendment was adopted. It was a remark in a personal letter with zero legal authority in the way of personal impression. Jefferson was not at the Constitutional Convention, nor was he involved in the drafting of the First Amendment after the Convention. That was accomplished by James Madison working with and trying to satisfy the anti-Federalists.

    There is absolutely no record in the ratifying proceedings of the First Amendment by any of the states of any notion that it created a “wall of separation between church and state”. In fact a number of the states had and maintained for years afterwards established churches.

  • Private parties including the family members originally created the cross. It was never meant to represent all fallen soldiers, just the ones from their county.

    The government later took the land through eminent domain for a road project.

    Should the government be in the business of buying religious symbols? Probably not. But neither should the government be involved in taking religious symbols through eminent domain in order to desecrate or destroy them.

  • Also, the Argonne Cross and Canadian Cross of Sacrifice stand on public land just miles away from this one.

  • Jefferson’s “wall of separation letter “was a remark in a personal letter with zero legal authority”? Not at all – Jefferson’s letter is one of the most important constitutional law documents in existence. It documents a Founding Father stating that the First Amendment creates a wall of separation between religion and government.

    The letter was written in President Jefferson’s official capacity as Chief Executive of the United States, was reviewed by Attorney General Levi Lincoln and other government officials, and reflected Jefferson’s official interpretation of the First Amendment as a Founding Father. The letter was published in local newspapers of the time. This was not a personal, private letter as you falsely assert.

    The Supreme Court has repeatedly held since 1879: “Separation means separation, not something less. Jefferson’s metaphor in describing the relation between Church and State speaks of a ‘wall of separation,’ not of a fine line easily overstepped… ‘The great American principle of eternal separation’ – Elihu Root’s phrase bears repetition – is one of the vital reliances of our Constitutional system for assuring unities among our people stronger than our diversities. It is the Court’s duty to enforce this principle in its full integrity. We renew our conviction that ‘we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion.’ McCollum v. Board of Education, 1948.

  • The Argonne Cross and Canadian Cross have already been litigated. As the court noted: “None of these crosses is a prominent or predominant feature of the cemetery, and the overall image and history of this military burial ground are not founded on religion.” These two memorials are overwhelmed by the secular context created by the thousands of rectangular gravestones and other monuments that do not incorporate religious imagery. Now compare that to the 40-foot stand-alone Latin cross that dominates the Bladensburg skyline. As the Supreme Court has held, “context matters.”

  • Yes, the cross was once in private hands and was dedicated to just the 49 fallen soldiers from the local area. The cross always had a religious purpose. Originally called the “Calvary Cross” to symbolize the crucifixion of Jesus, the plan was to erect a “mammoth cross, a likeness of the Cross of Calvary, as described in the Bible.” The cross was dedicated on July 12, 1925, at a public ceremony led by government officials and Christian clergy. The keynote speaker, Maryland Rep. Stephen Gambrill, reaffirmed the memorial’s distinctly Christian meaning, declaring: “by the token of this cross, symbolic of Calvary, let us keep fresh the memory of our boys who died for a righteous cause.”

    The American Legion sold the Bladensburg cross with the understanding that it would be maintained by the state. That should have never happened because a government entity cannot be entangled in using taxpayer funds to maintain what amounts to a 40-foot government endorsement of Christianity.

  • Thanks for explaining about “talking down”. I call that “explaining” and “teaching”. Not everyone is able to do it well, yet it is critical in a democracy. Many don’t have the wherewithal (for a myriad reasons) to learn basic information on their own. Our society is so complicated, that it’s hard to remain on top of all topics all of the time. So, we need epople who are willing to explain, clarify and teach in a manner that others can accept. But those teachers must be honest and trustworthy. Many of the “facts” that are being presented about many things are simply untrue. I happen to believe that this misrepresentation is cynical and calculated, performed with the intention of eroding the trust by the general public toward government institutions and solid media. It’s also used by people who want to maintain power over others.

    I agree with you that, at present, we will be lucky to enact anything even close to any actual political center. I believe that is so, because politics have been shifted so far to the right.

  • Unless we get a time machine, it has happened.

    Whether it was a war memorial first or intended as a religious symbol first is up for debate.

    If the two crosses approaching half the size of this other cross are “secular” by their context as war memorials, then its seems like begging the question to say that giant crosses in a flat field of grave markers don’t stand out too much, but a giant cross on similarly flat ground does.

  • it can be like a rorschach test . people look at ink blots and see what they are inclined to see . it often has not a thing to do with reality .

    the oak doors leading into the court chamber have the image of two “tablets” with roman numerals 1 thru 10 on them . those inclined to see 10 commandments on them do . those who have an american legal orientation think of the bill of rights which is what the person who created them wrote that he meant .

  • Federal courts do look at issues such as “prominence” and “context” when deciding whether religious symbols or messages on government property violate the Establishment Clause of the 1st Amendment.

    Are Ten Commandments displays on government property unconstitutional? It depends. In cases where the display was stand-alone and prominent, courts have held such displays are an unconstitutional government endorsement of religion. In cases where the display is just one of dozens in a secular context with a secular purpose, the courts have let such displays stand. Government must not appear to take a position on questions of religious belief. So the context and location of the displays are important.

    In the case of the “Calvary Cross” memorial, (named that to resemble the likeness of the Cross of Calvary, as described in the Bible), it is a stand-alone, 40-foot tall religious symbol that is prominent as heck, whose original purpose was to honor Christian fallen soldiers from the local area.

  • “The American Legion sold the Bladensburg cross with the understanding
    that it would be maintained by the state. That should have never
    happened because a government entity cannot be entangled in using
    taxpayer funds to maintain what amounts to a 40-foot government
    endorsement of Christianity.”

    That rather begs the question of whether it is a government endorsement of Christianity.

    For example:

    https://www.abmc.gov/sites/default/files/styles/rect_thumb_560x380/public/galleries/Suresnes_Inside_Chapel.JPG?itok=GGtMzvV9

    at

    https://www.abmc.gov/cemeteries-memorials/europe/suresnes-american-cemetery

  • “Jefferson’s ‘wall of separation letter ‘ was a remark in a personal letter with zero legal authority’?”

    Yes.

    “It documents a Founding Father stating that the First Amendment creates a wall of separation between religion and government.”

    A Chief Executive with zero judicial authority eleven years after the Amendment was ratified, a man who was NOT at the Constitutional Convention, a man who played NO role in drafting the First Amendment.

    There is zero precedent for making such a statement an authoritative interpretation of the Constitution.

    The Supreme Court has NOT repeatedly held since 1879: ‘Separation means separation, not something less. Jefferson’s metaphor in describing the relation between Church and State speaks of a ‘wall of separation,’ not of a fine line easily overstepped….”.

    In fact, that’s pretty much a dead letter since Justice William H. Rehnquist’s dissent in Wallace v. Jaffree, 472 U.S. 38 (1985). His competing interpretation of the establishment clause has become the dominant interpretation since he pointed out there is simply no historical foundation for the proposition that the Framers intended to build the ‘wall of separation’ that was constitutionalized in Everson [v. Board of Education].” by Justice Hugo Black.

    Black’s judicial background consisted of a stint as a police court justice, and he was rabidly anti-Catholic and a member of the Klu Klux Klan.

    Since then the abundant documents from the Constitutional Convention, the correspondence between Madison and the anti-Federalists, the correspondence between him and the various state legislatures, and the records of the ratification all point to Jefferson’s letter being at best a tertiary document, and in most legal views completely irrelevant.

  • A more repugnant violation of the Constitution is the restriction of “Freedom of Speech,” symbolic or otherwise, applied to the government itself. Present trends of restriction are based on the concept of “evolving standards,” and limitations to the role of government communicating legitimate expressions regarding the superintendence of God in human affairs, not sound constitutional practices as envisioned by the majority of the founders.

  • you have the solution to these conflicts around the nation .

    whoever wishes to erect two blank tablets to express their beliefs, i would think, could do that anywhere without objection.

    bravo !

  • many “symbols of belief are currently available for identifying those buried in military cemeteries . it is now done on an individual basis and no assumption made as to the beliefs of all buried in one place .

  • you know that we all know that one religious symbol used to be used to express the belief of all the war dead in this country . so what is your point ? that we should continue to do that ? that we should not learn ways to become more embracing of the beliefs of those who fight and die in the service of america ?

  • moresteps: Agreed, but too many people bring this up as if it’s an authoritative fact. I suspect there’s someone spreading this misinformation.

  • kronzypantz: The streets aren’t designed for pedestrians to access this plot of land unless traffic is diverted for special events. You’re over-exaggerating by using “impenetrability” when referencing my statements.

  • Shawnie5: You invalidated that part of his comment, showing that it’s not accurate. There is a chance that SCOTUS will overturn precedent, but I’d hope that they wouldn’t make such a decision as it would impose upon the rights of citizens.

  • kronzypantz: If I’m not mistaken this funding would’ve been an issue around 2013 or 2014.

    Its a 90 year old monument to the dead of the county.

    Yes. And?

  • kronzypantz:

    Yes, just as a grave marker other soldiers would also have a symbol of their religion.

    Not all grave markers and monuments are religious in nature. …but that doesn’t change the status of this monument being overtly religious.

    Apparently there wasn’t a conflict until the Humanist Association stepped in in 2014.

    There was, but it wasn’t public knowledge. It’s a little surprising that government agents didn’t bring up the conflict when funds were spent on repairs or when the monument was rededicated while owned by the government.

    If the monument is destroyed or desecrated, then the government has actively involved itself in religion to take a religious symbol and harm it. That would not be a neutral act.

    That’s why I think the best option would be selling the monument to a private interest that’s willing to pay for relocation, to avoid any future conflicts or issues.

  • kronzypantz: That decision seems to be addressing a temporary religious display. I’m not sure how this would apply to a permanent monument, but this is something that might come into play.

    There’s still the issue of tax money being used to repair this display and that impacting the religious rights of citizens.

  • Well, you lied about Jefferson’s “wall of separation” letter being a mere matter of personal correspondence. And to your obvious dismay, the Supreme Court has in fact repeatedly sided with Jefferson and Madison’s interpretation that the 1st Amendment legally and institutionally separates religion and government.

    And all 9 Justices in Everson v. Board of Education read the Constitution to call for a separation of religion and government, and all parties and amicus briefs from various religious groups did so as well. No one disputed the Establishment Clause interpretation, only how it should be applied to that particular case.

    It’s misleading to claim that only Hugo Black interpreted the Establishment Clause to mandate a separation between religion and government. All 9 Justices decisively came to that conclusion. And Black was not the only Justice to use Jefferson’s metaphor. Justice Rutledge also used the term “separation between Church and State” to describe the effect of the Establishment Clause, though he did not specifically credit Jefferson. And never mind that the Supreme Court back in 1879 already pronounced that Jefferson’s metaphor was “an authoritative declaration of the scope and effect of the [First] Amendment.” And Rehnquist’s dissent in Wallace v. Jaffree means his (mis)interpretation of the 1st Amendment was not accepted by the majority in that and subsequent cases. Ever hear of stare decisis?

    No historical foundation that the framers intended to separate religion and government? That is downright laughable:

    “The settled opinion here [in the United States] is, that religion is essentially distinct from civil Government, and exempt from its cognizance; that a connection between them is injurious to both.” (Letter to Edward Everett, Montpellier, March 18, 1823).

  • It is well established that government employees, acting in their official capacities, do not have what you refer to as “freedom of speech.” The Establishment Clause of the First Amendment does in fact prohibit government employees, acting in their official capacities, from endorsing, advancing, or promoting religion. As the Supreme Court put it:

    “There is a crucial difference between government speech endorsing religion, which the Establishment Clause FORBIDS, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Board of Education v. Mergens, 496 U.S. 226 (1990).

  • Good point. And nevermind that the official Supreme Court tour guides make it a point to explain to visitors that the Roman numerals I-X on the inner oak door of the Supreme Court refer to the Ten Amendments of the Bill of Rights (and not to the Ten Commandments). And why would Moses be using Roman numerals given that the Roman numbering system was not even invented at the time the Hebrew scriptures were written? This just shows the extreme desperation of Christian Nationalists who falsely claim the U.S. was founded as a Christian nation.

  • “Well, you lied about Jefferson’s ‘wall of separation” letter being a mere matter of personal correspondence.”

    https://en.wikipedia.org/wiki/Baptists_in_the_history_of_separation_of_church_and_state

    It had no official status, and was written to the Danbury Baptists – not the nation.

    “It’s also misleading to claim that only Hugo Black interpreted the Establishment Clause to mandate a separation between religion and government. All 9 Justices decisively came to that conclusion.”

    In fact Justice Jackson wrote a dissenting opinion in which he was joined by Justice Frankfurter. Justice Rutledge wrote another dissenting opinion in which he was joined by Justices Frankfurter, Jackson and Burton.

    You are copying and pasting this nonsense from somewhere, but your source is faulty.

    “And never mind that the Supreme Court back in 1879 already pronounced that Jefferson’s metaphor was ‘an authoritative declaration of the scope and effect of the [First] Amendment.”

    Dictum.

    https://law.upenn.edu/journals/conlaw/articles/volume8/issue4/Munoz8U.Pa.J.Const.L.585(2006).pdf

    “Among contemporary scholars and jurists, in fact, less agreement exists now about the Establishment Clause’s original meaning than when the Supreme Court first attempted to decide the matter in Everson v. Board of Education.’ The more historical research devoted to the subject, it seems, the more contentious the debate be- comes.“

    Your simplistic reading is that of “Protestants and Other Americans United for Separation of Church and State”, now “Americans United”, for whom the Jefferson letter has become a blunt bat to bludgeon the plain words of the First Amendment into a weapon against access to public funds for Catholics.

    It is ahistorical, unsupported, and frankly silly (cite a single other precedent in constitutional law based on the Executive’s personal interpretation).

    The Supreme Court has abandoned it, and wisely and correctly.

  • That’s pretty funny, Guzzman.

    Why are the Ten Commandments always written in English when the Roman lettering system was not even invented at the time the Hebrew Scriptures were written.

    It must be the Christian Nationalists.

  • Shawnie5: Both were not accurate. I made a mistake agreeing with the attempted correction, mixing up two depictions of Moses.

    Their establishment and free exercise jurisprudence has been literally all over the place. I rather expect some clarity on the subject to emerge from this SCOTUS in the near future.

    I don’t. As with many recent actions, SCOTUS nominations have had a partisan agenda most of the time.

  • irondrake: The fact that equal treatment is given to over 60 religions at government owned cemeteries. This is an exclusionary endorsement of one religion.

  • A large number of the war dead were from the British Raj. Of those, many were not Christian. Indeed, many wore the Sikh turban.

  • Being a part of the history of post-WWI America makes it more of a historic monument than some thrown together sectarian symbol.

  • A change of ownership does not entail a change in its use that would necessitate increased access. There is no necessary reason to move it if the land is returned to the veteran’s group.

  • None of the war dead celebrated on the monument were from the British Raj. They are from Prince George county, an overwhelmingly Catholic area even today.

  • kronzypantz: Which battle was fought at that location? Other than referencing the dead, I’m not aware of any historic quality.

  • irondrake: It is. By providing equal treatment to a wide variety of religions and beliefs the government doesn’t violate The Establishment Clause at government cemeteries. It also respects the religious rights of those buried at the cemeteries.

  • kronzypantz: They’re worth remembrance, but not worth violating the Constitution and rights of citizens that these 49 men fought to uphold and defend.

  • A violation such as the government taking a religious symbol, promising to leave it be, but eventually destroying or desecrating it?

    The government did not create the symbol, but took it for secular reasons.

    The least burdensome approach is to make clear it stands as an agreement of its original purchase and not as a sectarian statement, being preserved as a memorial to the men.

  • kronzypantz: Destruction isn’t the only option. I’ve addressed this in other comments. Is there a reason why you’re fixating on that?

  • Religious right revisionists call our attention to the frieze on the wall above where the Supreme Court justices sit, and claim that the seated figure sitting beside a tablet with the Roman numerals I-X is Moses and the carved tablet is the Ten Commandments. So we are supposed to believe that the Ten Commandments carved by Moses were numbered using a system not yet invented?

    Oh wait, here is a dispatch from the realm of reality: The designer of that very frieze, Adolph Weinman, wrote a letter to the Supreme Court architect explaining that this graven image represents the “Majesty of the Law,” sitting beside the “Majesty of Government,” and that the Roman numerals I-X stand for the ten amendments of the Bill of Rights.

    Christian Nationalists (aka “Liars for Jesus”) caught bearing false witness yet again.

  • Yes, after the Jefferson letter fiasco I would also change the subject were I you.

    As far as I know Moses did not carve the frieze in the SCOTUS courtroom.

    That pretty much concludes “So we are supposed to believe that the Ten Commandments carved by Moses were numbered using a system not yet invented?”.

    One would assume that when Adolph Weinman was commissioned everyone agreed on the content of the frieze. But here is the explanation by the Office of the Curator – Supreme Court of the United States with a picture:

    https://www{DOT}supremecourt.gov/about/northandsouthwalls.pdf

    “Moses (c. 1300s B.C.) Prophet, lawgiver, and judge of the Israelites. Mosaic Law is based on the Torah, the first five books of the Old Testament. Moses is depicted in the frieze holding two overlapping tablets, written in Hebrew, representing the Ten Commandments. Partially visible from behind Moses’ beard are Commandments six through ten.”

    Send him a note correcting him and share his response with us.

    When I have more time I’ll run down some of the sources you’re relying on.

  • You are misrepresenting what the Supreme Court said about the Establishment Clause of the 1st Amendment in Everson v. Board of Education. Yes, the 9 Justices were split over the question of whether a NJ policy reimbursing private school students for bus fare was constitutional. The Justices had to decide whether the policy gave support to religion, with the majority (5 out of 9) concluding the payments were “separate and so indisputably marked off from the religious function” that they did not violate the Constitution.

    Both affirming and dissenting Justices, however, were UNANIMOUS that the Constitution required an impregnable separation between government and religion. Got it? Once more with feeling – all nine Supreme Court justices in Everson read the Constitution to call for separation of church and state, and indeed all parties in the case and all “friends of the court” briefs did so (including briefs from various religious groups representing Catholics, Seventh Day Adventists, and Baptists). No one disputed the Establishment Clause interpretation, only how it should be applied to the specific details of that particular case.

  • Everson is old news.

    Once people with a bit more background than police court magistrate and sufficient logic to note that looking to Jefferson when we had all the correspondence and proceedings of the Constitutional Convention through ratification to consider was stupendously silly, it just went away.

    Just like Dred Scott v. Sandford (1857) went away.

    https://law.upenn.edu/journals/conlaw/articles/volume8/issue4/Munoz8U.Pa.J.Const.L.585(2006).pdf

    The failure to appreciate the Founders’ diversity of approaches to church-state arrangements led to a failure to articulate with precision the Anti-Federalists’ criticisms that led to the adoption of the Bill of Rights. That failure, in turn, led to misinterpretations of the original meaning of the Establishment Clause and, correspondingly, the application of erroneous historical narratives to modern church-state cases.

    Your position is one of those erroneous historical narratives.

  • So your retort to the unanimous support the Supreme Court gave to the principle of separation of religion and government in Everson is that “Everson is old news.” A binding court precedent is “old news” in the same way that “separation of powers” or “checks and balances” is old news. Oh wait, the Constitution doesn’t literally contain those phrases so we can decisively conclude, using your “logic”, that no such principles exist in the Constitution.

    Also, you falsely try to characterize the majority opinion in Everson as some sort of misappropriation of Jefferson’s letter regarding the constitutional separation of religion and government. It was hardly the basis for the Everson decision. The majority opinion, should you care to read it, provided the historical and legislative context in which the Constitution and First Amendment were drafted, discussing Madison’s interpretation much more so than Jefferson’s, and only after summarizing its analysis and writing its conclusion did the Court refer to Jefferson’s letter, and that was merely to reference his wall of separation metaphor as a way to brand the opinion’s summary and conclusion. The claim that the majority opinion based its decision entirely or even mostly on that letter is bogus.

  • Read the article I’ve provided – twice. There is more.

    The Everson court never looked at the material that built up to the First Amendment.

    I don’t know whether their law clerks were doing a lot of drinking, they figured no one would ever check their arguments, or they were all donning KKK robes after their sessions.

    However, YOU were the one who brought the Jefferson letter, then canonized it.

    Jefferson was wrong and the Everson decision was a bad one.

  • “I believe that is so, because politics have been shifted so far to the right.”

    More likely because you and your friends have gone so far left.

  • two things :

    1) you didn’t ask a question . you stated your opinion, putting a “why” in front and a “?” at the end .

    2) i did respond indirectly to your point . you accurately state what is on the walls of the supreme court . but my original comment was to [whatever his name is this month]’s statement that “…the Ten Commandments sculpted…” was obviously a misstatement . is moses there ? yes . is the 10 commandments there ? no . you reference an allusion to them on one tablet . but “vi, vii, viii, ix, x” is but a reference to, it is not the text .

    and thus i suggested that one might do a similar thing anywhere and no one would confuse that with the 10 commandments themselves .

  • I read the Munoz (2006) article: “The original meaning of the Establishment Clause and the impossibility of its incorporation.” We already know the First Amendment limited only the federal government, the Constitution was later amended to protect from infringement by states the privileges and immunities of citizenship, due process, and equal protection of the laws. The courts quite naturally looked to the Bill of Rights for the important rights thus protected by the 14th Amendment and have ruled that it effectively extends the 1st Amendment’s guarantees vis a vis the federal government to the states. While the founders drafted the 1st Amendment to constrain the federal government, they certainly understood that later amendments could extend similar constraints to state and local governments.

    Regardless, the Constitution’s separation of religion and government reflected, at the federal level, a “disestablishment” political movement then sweeping the country. That political movement succeeded in disestablishing all state religions, the last of which was Massachusetts in 1833. Separation of religion at all levels of government is the law and lower courts must follow it until the Court overrules itself (extremely unlikely based on stare decisis) or else states amend the U.S. Constitution (even less likely because all state constitutions have some form of separation of religion and government embedded in them).

    Even Munoz (2006) acknowledges incorporation is a done deal: “While disincorporation is logically possible, no sitting Supreme Court Justice, except Clarence Thomas, has suggested that he or she would entertain such a massive change in constitutional law. Incorporation has long been accepted and the sheer force of time would seem to ensure that the Establishment Clause will remain applicable against the states.”

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