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Supreme Court seems inclined to retain cross on public land

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

WASHINGTON (AP) — The Supreme Court seemed inclined  to rule that a 40-foot-tall cross that stands on public land in Maryland is constitutional, but shy away from a sweeping ruling.

The case the justices heard arguments in on Wednesday (Feb. 27) is being closely watched because it involves the place of religious symbols in public life. But the particular memorial at issue is a nearly 100-year-old cross that was built in a Washington, D.C., suburb as a memorial to area residents who died in World War I.

Before arguments in the case, it seemed that the memorial’s supporters, including the Trump administration, had the upper hand based on the court’s conservative makeup and its decision to take up the matter. Even liberal justices Elena Kagan and Stephen Breyer suggested that they could join a narrow ruling upholding this particular memorial.

Kagan noted that the cross is a symbol linked with soldiers killed in World War I.

“When you go into a World War I battlefield, there are Stars of David there, but because those battlefields were just rows and rows and rows of crosses, the cross became, in people’s minds, the pre-eminent symbol of how to memorialize World War I dead,” she said, adding that there are no religious words on the Maryland cross and that it sits in an area with other war memorials. She asked, “So why in a case like that can we not say essentially the religious content has been stripped of this monument?”

Breyer, for his part, asked a lawyer arguing for the cross’ challengers what she thought about saying that “history counts” and that “We’re not going to have people trying to tear down historical monuments even here.”

“What about saying past is past?” he said at another point during arguments conducted in a courtroom whose friezes include depictions of Moses and Muhammed and that began, as always, with the marshal’s cry: “God save the United States and this honorable court.”

The cross’s challengers include three area residents and the District of Columbia-based American Humanist Association, a group that includes atheists and agnostics. They argue that the cross’s location on public land violates the First Amendment’s establishment clause, which prohibits the government from favoring one religion over others. They say the cross should be moved to private property or modified into a nonreligious monument such as a slab or obelisk. The group lost the first round in court, but in 2017 an appeals court ruled the cross unconstitutional.

The cross’s defenders include The American Legion, which raised money for the monument, and Maryland officials who took over maintenance of the cross nearly 60 years ago to preserve it and address traffic safety concerns. Maryland officials say the cross, sometimes called the “Peace Cross,” doesn’t violate the Constitution because it has a secular purpose and meaning.

Those defending the cross say a ruling against them could doom of hundreds of war memorials that use crosses to commemorate soldiers who died. Justice Samuel Alito picked up on that concern during arguments, telling American Humanist Association lawyer Monica Miller: “There are cross monuments all over the country, many of them quite old. Do you want them all taken down?”

Miller said no, and she told the justices there are only between 10 and 20 monuments nationwide that are truly like Maryland’s cross.

In the past, similar monuments have met with a mixed fate at the high court. On the same day in 2005, for example, the court upheld a Ten Commandments monument on the grounds of the Texas state Capitol while striking down Ten Commandments displays in Kentucky courthouses.

After those rulings and others the Supreme Court has been criticized for being less than clear in explaining how to analyze so-called passive displays, like Maryland’s cross, that are challenged as violating the Constitution’s establishment clause. In 1971 the court announced one test for such cases. It asks whether the government’s action has a secular purpose, advances or inhibits religion or fosters “an excessive government entanglement with religion.” But in the decades since, the court hasn’t consistently followed that test, and several former and current justices have criticized it.

Justice Neil Gorsuch asked Wednesday if it wasn’t time to get rid of the test, saying it has resulted in a “welter of confusion.” Justice Brett Kavanaugh suggested that lower courts “need some clarity” from the Supreme Court.
At the same time, several conservative justices sounded skeptical of a test advocated by Michael Carvin, a lawyer for The American Legion, who told the justices that what the Constitution was concerned with was religious coercion.

Chief Justice John Roberts told Carvin that he was advocating “a pretty concise test” but that it deteriorates “pretty quickly into, well, I need to know about this and I need to know about that.”
A decision in the case is expected by the end of June.
___

Jessica Gresko writes for The Associated Press. Reporter Mark Sherman contributed to this report.

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  • Does anyone else notice the irony of an article about this “secular, totally non-religious monument” appearing on Religion News?

  • “Even liberal justices Elena Kagan and Stephen Breyer suggested that they could join a narrow ruling upholding this particular memorial.”

    Which means Conservative Christians would then lie about the decision and claim it has far more precedential value than it did. (See their reaction to Hobby Lobby and Masterpiece Bakery)

  • The only ones I saw expanding Hobby Lobby’s impact were progressives who claimed that it would allow mass corporate religious discrimination.

    Some conservatives have wanted Masterpiece Bakery to be more expansive, but progressives have pushed for the same expansion for such cases they won in other states.

    If the justices rule in favor of this monument, lets just let that be the end of it for now, and not try to make it some rule for the whole nation.

  • Hobby Lobby was written in such a way that it is nearly impossible to cite for precedent. The conservative justices knew they had a steaming dookie on hand in order to get the desired partisan result they sought. So it is so narrowly worded, loaded with limiting language and dependent on the specific facts and reading of federal statute.

    People still try to cite Hobby Lobby when they want to pretend companies have religious beliefs and its workers are acolytes of said faith. But it doesn’t wash.

    Conservatives claimed the Masterpiece Bakery meant that religious belief was a valid pretext for discrimination in open commerce. But that was utterly false. The decision was simply that the state judicial body had acted rudely in casually dismissing the plaintiff’s religious belief claims. The legal merits of the plaintiff’s claims weren’t even under discussion in the decision. Justice Kennedy made it clear if he had gotten that far, he would have rejected the “religious freedom” claims.

    ” but progressives have pushed for the same expansion for such cases they won in other states.”

    You mean progressives have been upholding civil liberties and trying to prevent frivolous “religious freedom” claims to justify discrimination and violating state and local laws.

  • I think they are wrong in seeing the cross in this case as a secular symbol. It wasn’t from the first meant as a secular symbol. The crosses in the cemeteries referred to by the justices aren’t secular symbols. They are a symbol of the triumph of Christianity over death.

    Because Christians have made the cross the symbol of their church it isn’t a secular symbol.

  • “But in the decades since, the court hasn’t consistently followed that test, and several former and current justices have criticized it. Justice Neil Gorsuch asked Wednesday if it wasn’t time to get rid of the test, saying it has resulted in a “welter of confusion.” Justice Brett Kavanaugh suggested that lower courts “need some clarity” from the Supreme Court.”

    Precisely on the expected schedule.

  • You’re right, but they need to PRETEND it’s not a religious symbol in order to pass judicial muster.

  • During his confirmation process Gorsuch said he had a deep respect for precedent, ” I’m sworn as a sitting judge to give the full weight and respect to due precedent.” And that he always starts with a “heavy, heavy presumption in favor of precedent.”

    Yet this is at least his 4th case where he’s ruled against long held precedent. See also:
    Janus v. AFSCME
    South Dakota v. Wayfair
    Abbott v. Perez

  • By now there are all sorts of 1st Amendment precedents. It’s time for the SCOTUS to pick on or come up with a distillation.

  • According to this article, it’s the American Legion and “Maryland officials” who are defending the cross on public land. These are not Christian organizations. Are there Christian organizations that are making the argument that it’s not a religious symbol?

  • I think an easy solution would be for Maryland to sell the smallest plot of land possible on which the cross sits to a private organization. That would allow the cross to stay where it is and then it shouldn’t offend the couple people who object to it.

  • “In Flanders fields the poppies blow
    Between the crosses, row on row,
    That mark our place: and in the sky
    The larks still bravely singing fly
    Scarce heard amid the guns below…”

    (Lieutenant Colonel John McCrae)

  • Here is a side issue . . .

    Suppose that Jesus had lived in a different time period where the common method of execution was hanging with a noose. Would this huge monument be a gallows with a noose? Would people wear jewelry around their neck with a gold noose on it?

    Or suppose Jesus had lived in a much later time period where the common method of execution was electrocution with an electric chair. Would this huge monument be an electric chair? Would people wear jewelry around their neck with a gold electric chair on it?

    A cross, gallows/noose, and electric chair are all devices for execution, but the cross seems to be the worst because it induced far more torture that the other devices. The fact that a device that only exists for execution is the predominant symbol of Christianity is utterly disgusting to me.

  • It was not at first used. Persecuted Christians used the Fish Ichthus — Jesus-Christ-God’s-Son-Savior, as their secret symbol. Jesus was not a Roman Citizen. Therefore, he was crucified. This was the death-sentence for slaves. St. Paul, a Roman citizen, was beheaded. However, recognition of the the Cross as the Tree of Life mentioned in the Old Testament, evokes Christ’s Resurrection. It also is a sign of the end of slavery to sin. The ear-ring was for slaves only in the Roman Empire. The cross is a symbol of VICTORY over slavery to sin and the power of death.

  • The cross was and in many parts of the world remains a common symbol for deaths, war memorials, and the like without any particular religious connotation.

    The base of the cross displays the words “valor,” “endurance,” “courage,” and “devotion.”

    The bronze tablet on its base listis the names of 49 men from Prince George’s County’s who died during the war – all Christians, and a quote from Woodrow Wilson:

    “The right is more precious than peace. We shall fight for the things we have always carried nearest our hearts. To such a task we dedicate our lives.”

    Now, had it included some words like “Praise Jesus!” you might have the traction to make your point.

  • https://www{DOT}scotusblog.com/case-files/cases/the-american-legion-v-american-humanist-association/

    The “Brief amicus curiae of Thomas More Law Center” would be a good start.

    The “Brief amici curiae of American Association of Christian Schools” takes direct aim at the Lemon test.

    The “Brief amicus curiae of Justice and Freedom Fund” is excellent.

  • The cross is not the subject of the litigation.

    The subject is a memorial built by private citizens in the shape of the markers on the graves in the overseas cemeteries in Europe conserved and preserved by the state of Maryland.

  • I disagree.

    Let’s take the Lemon test out and give it a decent burial, and then let’s make it clear that every crank that does not like this or that religious symbol needs to get along with others and play nice in the sandbox, and also make it clear that unless you’re compelled to attend a service it is not an establishment of religion.

  • There is no long held precedent on the First Amendment vis a vis the Establishment Clause.

    Right now it looks like smorgasbord or a doily of decisions with zero internal logic.

  • It would be pretty hard to construct a granite noose.

    One might go with a pyramid but then the Humanists would sue saying it promoted the Egyptian religion.

    I am not sure why “The fact that a device that only exists for execution is the predominant symbol of Christianity is utterly disgusting to me.” when you’re not a Christian and have expressed your utter contempt for them.

  • The SCOTUS is going to squash the American Humanist Association like cockroaches.

    That will provide the easy solution, and eliminate nuisance suits like this in the future.

  • “LAMB’S CHAPEL and JOHN STEIGERWALD, PETITIONERS v. CENTER MORICHES UNION FREE SCHOOL DISTRICT et al.”

    “on writ of certiorari to the united states court of appeals for the second circuit”

    “June 7, 1993″

    “Justice Scalia , with whom Justice Thomas joins, As to the Court’s invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening thelittle children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: our decision in Lee v. Weisman, 505 U. S. —-, —- (1992) (slip op., at 7), conspicuously avoided using the supposed “test” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so. ….”

    “The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e. g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e. g., Aguilar v. Felton, 473 U.S. 402 (1985) (striking downstate remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts,” Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.”

    “For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced.”

  • The brief of the Jewish Coalition for Religious Liberty is worth a read.

    They find the effort to purge religious symbolism and practice from the public realm troubling as a religious minority.

  • A question for Justice Kagan: Are Christians likely to agree with you that an unmistakably Christian cross is today void of religious content? But for expediency in winning their case, I think not. Her statement does a disservice to both sides.

    To be fair, I don’t generally support going after every monument incorporating, even featuring, religious symbolism. There are bigger fish to fry, I don’t personally find them offensive, and if I contribute to an organization, I’d like my money to go where it can do the most good (FWIW, I don’t give to the AHA). On the other hand, setting a precedent could be useful since governments seem rather flexible in what monuments they allow on public property. Simply put, as Kavanaugh said there’s a need for clarity.

    As to this cross in particular, it was never intended merely for the arguably secular purpose of memorializing dead soldiers. For starters, in 1918, the Prince George’s County Memorial Committee began collecting donations and included this statement on their pledge sheets:

    “We the citizens of Maryland, trusting in God, the supreme ruler of the universe, pledge faith in our brothers who gave their all in the World War to make the world safe for democracy. Their mortal bodies have turned to dust, but their spirit lives to guide us through life in the way of godliness, justice, and liberty. With our motto, “one God, one country, and one flag,” we contribute to this memorial cross commemorating the memory of those who have not died in vain.”

    Then, in 2019, the Secretary of the Navy spoke and the U.S. Marine Band played. Once the monument was complete in 1925, United States Representative Stephen Gambrill (serving Maryland’s 5th Congressional District) dedicated the memorial thus (in part):

    “You men of Prince George’s County fought for the sacred right of all to live in peace and security and by the token of this cross, symbolic of Calvary, let us keep fresh the memory of our boys who died for a righteous cause.”

    Bearing this in mind, I think claims that the cross is a secular symbol (it clearly isn’t) serving a secular purpose (dubious at best, and only arguable viewed through today’s more secularized lens) lack merit.

  • The suggested solution to the problem whereby a 40-foot Latin cross governmentally maintained and located on governmental property, thus blatantly supporting Christianity over all other religions, seems to be one of adopting a legal fiction identifying it as a “ceremonial cross,” completely absent any religious significance. This parallels the analogous “ceremonial deism” that identifies the “God” in “under God” and “In God We Trust” as not really God, but simply a legal fiction in order to reduce Constitutional conflict. This preserves Christian dominance while pretending to provide religious equality.

  • And finally get you the explicitly pro-Christian government you want (but can never have)? Good luck with that.

  • Exactly. Which is what makes such lawsuits so amusing… the combined earnest efforts to point to religious symbols and pretend they’re NOT religious, coupled with hysteria from zealots about their ‘religious freedom’ if those symbols are ever questioned.

  • I certainly hope the Court finds a way to allow the cross to stay that gets at least 7-9 votes and sets some sort of precedent that religious symbols that have been on government property for a while don’t have to be removed.

  • Ok… But the cross itself is a religious symbol. I don’t think it needs to be removed, but it’s certainly a religious symbol.

  • On page 4 of its brief, the Thomas More Law Center says “A cross is not only a religious symbol, it is also a universal symbol of sacrifice and death.”

    They don’t seem to be arguing that the cross is not a religious symbol, but that it is a religious symbol, and much more. I’m disinclined to read the other briefs if this first one was not an example of a Christian organization arguing the cross is not a religious symbol. Or perhaps you had another reason for referring me to them?

  • Alex – In its brief before the Court, the American Legion does not argue that the cross has no religious significance. It refers to it as “religious imagery,” while arguing that it doesn’t cross the line into endorsement based on past precedent of the Court. Granted, I didn’t listen to the oral arguments. Perhaps it made that argument there, but I’d think it’d be weird to make an argument different than the one it make in their brief.

    Why do you view this as an endorsement of Christianity over all other religions as opposed to maintenance of a historically, socially, and culturally significant monument?

  • Thanks for explaining this to Richard. Only someone unfamiliar with the tenets of the Christian faith would assert that the cross is merely a symbol of execution. The empty cross is a symbol of the resurrected Christ.

  • If it “…. blatantly support(ed) Christianity over all other religions …”, it is unlikely that the SCOTUS would have accepted the case for review.

    The national and overseas cemeteries from the Revolution on are littered with crosses, stars of David, crescents, altars, angels, and more and until quite recent times the nittering nabobs were perfectly willing to let the dead heroes rest in peace.

    What we’re seeing is the rise of loud atheists, blatantly getting their knickers in a twist that the public is largely fine with religion, and the SCOTUS will no doubt end this silliness quite firmly.

  • Just because the Red Cross uses a cross as its symbol, does not make it a religious organization, just like Blue Cross Blue Shield is not a religious organization just because it uses a cross in its insignia. The red cross on a white field that the Red Cross uses as its symbol is not a religious symbol. The cross in Maryland is clearly a Christian symbol.

  • It wasn’t the only thing I got out of it. They make a great argument for keeping the cross where it is, but it’s pretty clear that they do view it as a religious symbol, as they should.

  • I thought you said it was a religious symbol.

    Now you’re saying a cross all by itself does NOT signify religion.

    And you know which ones are religious and which are not.

    Explain how you know that.

    Then explain how this nearly 100 year old monument, which bears NO religious wording anywhere on it, IS a religious symbol.

  • How about the cross bottonys in the Maryland state flag?

    https://upload.wikimedia.org/wikipedia/commons/thumb/a/a0/Flag_of_Maryland.svg/383px-Flag_of_Maryland.svg.png

    which Section 7-202 of the General Provisions Article of the Annotated Code of Maryland describes as:

    “…. a cross bottony counterchanged, so that they consist of a quartered field of white and red, charged with a Greek cross that has arms terminating in trefoils and opposite coloring so that red is on the white quarters and white is on the red quarters, as represented on the escutcheon of the State seal.”

  • Yes, context and intent matter. For example, 4 + 4 = 8 is not a religious statement just because there’s a cross between the 4s. So you have to look at the context and intent of the individuals who use the cross…and that brings us back to the cross on the WWI memorial…

  • I don’t know…what do you think? Are they religious symbols? I don’t know anything about the history of the flag or insignia (other than I think they’re from two families…was it the Calverts and someone else)?

  • I said the crosses that Susan Humphreys described are religious symbols….those on grave stones and used by churches….those used by Christians to “symbolize of the triumph of Christianity over death.”

    As for the specific cross in Maryland, let’s go with what the American Legion said it its brief to the Court:

    …this Court should clarify that passive displays with religious imagery—like the Peace Cross—will not constitute an establishment of religion except in extraordinary circumstances.

    The Legion clearly thinks that this cross is “religious imagery.” That’s why I think it is a religious symbol.

    Do you disagree?

  • St. John Damascene says that in Old Testament times:”death was condemnation.” Bottom Line: Christianity, and the general remembrance of the sacrifices of the dead, cannot be erased by removing this cross. We are in the Last Days. Whether it lasts for centuries or not, the hopefulness associated with those that have gone before will not be extinguished.

  • Which appears to be symbol of the same type of crosses in the WWI American overseas cemeteries, sans religious wording or texts, not chose in discrimination against any minority faiths’s memorials, not coercing participation or belief by non-Christians, just like the Red Cross and the Blue Cross crosses.

    In order to be unconstitutional it has to constitute an establishment.

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  • I agree with you that the crosses displayed in cemeteries around the world are neither discriminatory nor coerce participation, but that doesn’t mean the crosses used in cemeteries are not religious symbols. The American Legion, in its brief to the Supreme Court, refers to the cross in Maryland as “religious imagery.”

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