Why Is This Cross-Shaped Memorial Constitutional?
In the decades following World War I, a private group in Bladensburg, Maryland, raised money to erect a 40-foot-high cross in memory of 49 local soldiers who had died in the fighting. (After the group’s fundraising efforts stalled, the local American Legion post eventually completed the project in 1925.) In 1961, the state acquired the land on which the cross sat; it has maintained the monument ever since.
Today, American Humanist Association v. American Legion will be argued in the Supreme Court, posing the question of whether or not the cross-shaped memorial is constitutional, and if so, why. “Formally at stake is the fate of a 40-foot-high concrete Latin cross,” Garrett Epps wrote last week. “The result may help resolve disputes over local memorials around the country. Beyond that, it will tell us a lot about the new conservative Supreme Court majority’s approach to the First Amendment’s establishment clause.”
Garrett Epps provides a characteristically helpful analysis of the upcoming arguments in our case, The American Legion v. American Humanist Association, while casting doubt as to the standard we suggest the court adopt in such cases.
First Liberty Institute, along with Jones Day, intervened on behalf of the American Legion at the outset of this case because, as the organization that erected the monument on behalf of the mothers of Prince George’s County, Maryland, who lost their sons in the Great War, they have an interest in its continued existence.
It is a veterans’ memorial. Its shape mimics the gravestones many American soldiers were buried under in Europe. Black or white, rich or poor—the men listed on its base served our country, sacrificing themselves in the cause of freedom. They fought in segregated units, but are integrated on the memorial.
Our purpose from the District Court until now has been to protect this veterans’ memorial by seeking clarity from the courts regarding the law (the establishment clause) used to determine its existence—an area Justice Clarence Thomas has said is in “hopeless disarray.” It needn’t be. It should not take five years of litigation and a four-volume appendix to conclude that a Veterans memorial is constitutional.
Without further clarity from the Justices, we will witness increasing efforts to desecrate Veterans memorials—as in the Argonne Cross or Canadian Cross of Sacrifice in Arlington National Cemetery—and other passive, public displays that bear religious imagery or language. Such attacks will come under the guise of neutrality, but will result in the imposition of a categorical ban on sectarian symbols in the public square.
A more historically-grounded test that protects religious liberty by preventing the suppression and compulsion of religious exercise is needed. Returning the historic standard we propose will allow all of us to preserve and honor the way these Gold Star mothers and the American Legion chose to remember the service and sacrifice of the 49 fallen servicemen of Prince George’s County.
President and CEO of First Liberty Institute
Although I am an agnostic, it has usually been my inclination to respectfully accept religious displays in our public spaces. If my neighbor wishes to set up a Christmas tree or a menorah in the town center, I’m happy to share their holiday moment. Why not be kind? A cross as a war memorial? Well, if it’s likely that those being honored were Christians, again, fine with me.
But now that many Christians have become seriously determined to craft civil laws to reflect their beliefs, and to seek exemptions to our common rules, I understand why those in the secular community feel the need to strictly interpret the establishment clause.
I preferred kindness and mutual respect. But it’s not respectful, in my view, to humiliate a customer in your cake shop, or to post your Ten Commandments in the courtroom where we all hope for an unbiased hearing of our case.
The question at the heart of this case also raises a separate issue of whether or not the government has any duty to preserve previously constructed religiously themed structures on land taken by eminent domain. I’m only guessing that the state acquired the land for this roadway junction through eminent domain. If that is the case, then the state took the land knowing full well that a very large cross, paid for with private funds, had been situated there for nearly 40 years.
Does the government not also find itself in a First Amendment bind if it removes the structure? Would that not constitute governmental prejudice against religious expression by private individuals?
This is the real way that this case is distinguished from those dealing with Ten Commandments installations at statehouses or courthouses, as those cases look at religiously themed monuments being installed on land already owned by the government. Here, however, the state chose to acquire a parcel of land that was home to a long-standing monument that some view as an expression of faith.
If the court were to force the state to remove the monument, this could conceivably open up new avenues for hostile parties to suppress religious expression. With the varied ways that local governments apply the takings clause, you might run into a situation wherein the government seizes a parcel of land with some sort of religious monument or structure knowing that it will be required to remove said structure.
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