Maryland’s Peace Cross memorial can remain


In approving the presence on public property of a cross-shaped memorial to servicemen who died in World War I, the Supreme Court left unresolved many of the uncertainties plaguing its church-state jurisprudence. The 7-2 decision came June 20 as the court hurried to wrap up its 2018-2019 term.

The impression of questions unanswered and a court divided was underlined by the fact that several of the justices, although agreeing with the result in the case, nevertheless felt moved to write opinions — seven in all — setting out their particular views. Yet even so, only Justices Ruth Bader Ginsburg and Sonia Sotomayor, arguably the court’s two most diehard liberals, dissented entirely.

In his opinion for the court, Justice Samuel Alito called the cross at the center of the controversy “a prominent community landmark” whose “removal or alteration at this date would be seen by many not as a neutral act but as the manifestation of ‘a hostility toward religion that has no place in our Establishment Clause tradition.'”

The ruling applies, however, to a historic memorial, while contemporary monuments of a religious nature would presumably not pass muster as appropriate for government sponsorship. Alito pointed to Notre Dame Cathedral in Paris as an example of a clearly religious historic structure that the militantly secularist French government has no hesitation about owning and supporting.


The memorial, a 40-foot granite and cement Latin cross, stands on the median of a busy highway in the Washington, D.C., suburb of Bladensburg, Maryland. A federal district court ruled in 2015 that the cross is constitutional, but a divided three-judge panel of the U.S. Court of Appeals for the 4th Circuit ruled against it, and the full appeals court last year refused 8-6 to reconsider that decision, which the Supreme Court has now reversed.

The case, American Legion v. American Humanist Association, was argued before the Supreme Court last February. Some legal observers then speculated that the case might move the court to adopt clearer standards than it now has for deciding cases involving the First Amendment ban on an “establishment” of religion. And some justices have themselves been publicly critical of what they see as confusion in this area of constitutional interpretation. But for now at least, it was not to be.

Peace Cross

The idea for the Peace Cross, as it is universally known, originated as a way of paying tribute to 49 men from Prince George’s County, Maryland, who lost their lives in military service during World War I. It was promoted by private citizens, including the mothers of 10 of the men, and was privately financed.

In 1922 the American Legion, a military veterans’ organization, assumed responsibility for the project. The town then turned over the land for the cross, which was completed and dedicated in 1925. The National Park Service in 2015 placed it on its register of historic places.

Citing traffic safety concerns, the Maryland-National Capital Park and Planning Commission, a public entity, acquired both the cross and the land it occupies in 1961. In the years since then the commission has spent approximately $117,000 on upkeep of the cross, with another $100,000 in reserve for what observers say is badly needed restoration.

There was no known objection to the Peace Cross until 2014. At that time, the Humanist Association, which describes itself as an advocacy group on behalf of “humanists, atheists and freethinkers,” together with three individuals who objected to “unwelcome contact” with the cross, sued the park and planning commission charging that the First Amendment’s no-establishment clause was being violated. The American Legion entered the case in defense of the cross.

In developing a rationale for leaving it on public property, Alito stressed the historic character of the memorial. “Retaining established, religiously expressive monuments, symbols and practices is quite different from erecting or adopting new ones,” he wrote. “The passage of time gives rise to a strong presumption of constitutionality.”

Two of the court’s liberal members — Stephen Breyer and Elena Kagan — joined in a concurring opinion that came at the matter from the other direction. “I see no reason to order this cross torn down simply because other crosses would raise constitutional concerns,” Breyer wrote. But, he added, “a newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.”

Lemon test stands

The outcome in the case was a clear disappointment to those who had hoped the court might take the occasion to scrap its familiar three-part test of constitutionality in situations raising the issue of religious establishment. Some had suggested substituting a much simpler test, such as simply ruling out government coercion in religious matters.

The test that is now somewhat shakily in place was first set out in a 1971 case called Lemon v. Kurtzman. It requires that in order to be constitutionally acceptable a form of interaction between government and religion have a “legitimate secular purpose,” not involve “impermissibly endorsing religion,” and not create “excessive entanglement” between the two.

Applying that test to the Peace Cross case, the three-judge panel of the U.S. Court of Appeals that ruled against the presence of the cross on public land concluded that the memorial served the secular purpose of honoring the war dead, but a “reasonable observer” would see endorsement of religion as the “primary effect” of the monument, while spending public funds for the upkeep of the cross was an instance of “excessive entanglement” between government and religion.

The Supreme Court left Lemon standing, but Alito in his opinion did concede that the familiar three-part test created “particularly daunting problems in cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations.” More important in judging the cross, he said, was what the monument had come to represent over the years.

Justice Brett Kavanaugh in his concurring opinion, took direct aim at Lemon, which he called “not good law.”



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