Supreme Court rules cross at state-run WWI memorial can remain

by Jacqueline Thomsen - 06/20/19 10:23 AM ET

The Supreme Court ruled 7-2 Thursday that a large cross in Maryland known as the “Peace Cross” is constitutional and can remain in place.

The American Legion had built the 40-foot-tall cross in a memorial park for World War I veterans in Maryland, and a state commission later took over responsibility for the park, including caring for the cross.

But non-Christian residents argued that the government’s care of the cross is in violation of the Constitution’s separation of church and state edict.

However, the court found that the historical context surrounding the cross allows it to remain in place. And the majority opinion did so without using as its basis the Supreme Court’s previous test for determining if a law violated the constitutional clause banning Congress from passing any laws establishing a religion.

The justices were split in their reasoning behind their rulings: Justice Samuel Alito wrote the majority judgement, and was joined by Justices Stephen Breyer, Brett Kavanaugh and Chief Justice John Roberts.

Alito noted in his bench statement that the justices were “prolific” in writing about the case, as Justices Clarence Thomas, Neil Gorsuch, Elena Kagan, Kavanaugh and Breyer each wrote concurring opinions.

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

Religious groups celebrated Thursday’s decision as a major victory for religious liberty and freedom.

“The days of illegitimately weaponizing the Establishment Clause and attacking religious symbols in public are over,” Kelly Shackelford, the president, CEO and chief counsel to the First Liberty Institute, which represented the American Legion in the case, said in a statement.

“The attempted perversion of our Constitution is now over, and every American now has more freedom than they have had in decades, with a government no longer hostile to people or expressions of faith.”

Those representing secular groups came out against the ruling, with Daniel Mach, the director of the American Civil Liberties Union’s (ACLU) Program on Freedom of Religion and Belief, calling the decision “deeply disappointing.” The ACLU filed a brief in the case arguing against the cross.

“The silver lining, though, is that the ruling is limited to the unique circumstances of this particular monument, and is hardly a free pass for government officials to promote their preferred religious symbols and messages in the future,” Mach said in a statement.

In his opinion handing down the court’s judgement, Alito wrote that the cross “must be viewed in that historical context” of white crosses used to memorialize the overseas graves of American soldiers who died in the war.

“The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim,” the opinion states.

And he wrote that, due to the “passage of time,” the court cannot determine whether the motivation behind constructing the cross was truly religious, “and attempting to uncover their motivations invites rampant speculation.

“And no matter what the original purposes for the erection of a monument, a community may wish to preserve it for very different reasons, such as the historic preservation and traffic- safety concerns the Commission has pressed here,” the opinion reads.

Alito also referenced the court’s previous test for determining if a law violates the Establishment Clause. However, he wrote on Thursday that the justices relied on other past precedents, like decisions on issues like public prayer, to guide their decisionmaking process.

“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,” the opinion reads. “For all these reasons, the cross does not offend the Constitution.”

In a concurring opinion joined by Kagan, Breyer wrote that while he agrees the cross should remain, he doesn’t “understand the court’s opinion today to adopt a ‘history and tradition test’ that would permit any newly constructed religious memorial on public land.”

In Kavanaugh’s opinion, the court’s newest justice wrote that he can understand why some, like Jewish veterans, might be offended by the memorial. But he wrote that state officials could take action like passing new laws that would prohibit the cross.

However, Gorsuch was much firmer in his stance opposing those challenging the cross, calling for the case to be dismissed entirely. He wrote that the “American Humanist Association wants a federal court to order the destruction of a 94 year-old war memorial because its members are offended.”

“In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise,” Gorsuch wrote. “But recourse for disagreement and offense does not lie in federal litigation.”

But Ginsburg, in the dissenting opinion, wrote that “using the cross as a war memorial does not transform it into a secular symbol, as the Courts of Appeals have uniformly recognized.”

“By maintaining the Peace Cross on a public highway, the commission elevates Christianity over other faiths, and religion over nonreligion,” she wrote.