The Supreme Court on Thursday got religion ruling that a
gigantic Latin cross on government land in Maryland does not have to be moved
or altered in the name of church-state separation.
The justices reasoned that the 40-foot cross was erected
nearly a century ago as a World War I memorial, not as an endorsement of
Christianity. But while their verdict could extend to other existing monuments,
it does not offer a blank check to new ones.
The opinion by Associate Justice Samuel Alito concluded that
the display does not violate the Constitution's establishment clause because of
its longevity and multiple messages. The vote was 7-2, with Associate Justices
Ruth Bader Ginsburg and Sonia Sotomayor dissenting.
"The cross is undoubtedly a Christian symbol, but that
fact should not blind us to everything else that the Bladensburg Cross has come
to represent," Alito said. For many people, he said, "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."
Ginsburg dissented from the bench and in writing. "Just
as a Star of David is not suitable to honor Christians who died serving their
country, so a cross is not suitable to honor those of other faiths who died
defending their nation," she wrote.
It was another in a series of high court decisions defending
religious freedom, from allowing public prayer and allocating public funds to
exempting religious objectors from laws regarding contraception and same-sex
marriage.
The question before the court was simple: Does the
93-year-old "Peace Cross" in Bladensburg, Maryland, violate the First
Amendment, which prohibits government establishment of religion?
Even if the answer was yes, few of the justices who heard
the case in February wanted to see it moved, altered or demolished. Conceived
in 1919 by bereaved mothers of the fallen and completed by the American Legion
six years later, the war memorial has become part of the town's landscape.
A federal district court judge ruled in 2015 that the
monument did not violate the Constitution's ban on government establishment of
religion. But in 2017, a federal appeals court panel reversed that decision,
calling the cross the "preeminent symbol of Christianity."
Even if that's so, Alito ruled, crosses are commonplace as
grave markers. "If you look today online at pictures of American
cemeteries in Europe, what would strike you is this row after row of plain
white crosses,” he said from the bench.
Ginsburg disputed that rationale for maintaining the cross,
which she said "is a common marker for the graves of Christian soldiers
precisely because it symbolizes the foundational tenets of Christianity."
Several other justices wrote separately to justify other
reasons for allowing the cross to stand. Associate Justice Clarence Thomas
called it "clearly constitutional" despite any and all religious
connotations. Associate Justice Brett Kavanaugh said it should survive based on
"history, tradition and precedent." Associate Justice Neil Gorsuch
said challengers did not even have legal standing to sue.
By contrast, Associate Justice Stephen Breyer said the cross
essentially was being grandfathered in, but "a newer memorial, erected
under different circumstances, would not necessarily be permissible."
Justice Department spokeswoman Kelly Laco heralded the
court's ruling as "a win for protecting religious freedom and American
historical tradition." But some defenders of religious liberty said the
ruling did not go far enough.
"This decision leaves in place the tangled confusion of
past Establishment Clause opinions, which are currently being used to remove
religious messages, signs, and symbols from public squares around our
country," said Travis Weber, vice president for policy at the conservative
Family Research Council. "These issues will continue to arise."
Part of the problem is the high court's own convoluted case
history: a series of rulings on the intersection of government and religion
that some justices acknowledged has left the rules in disarray.
For nearly a half century, the court's seminal doctrine has
been the "Lemon test," named after the decision in 1971 that was
intended to define what government could and could not do when it comes to
religion. But over the years, the justices have ignored the very rules that
lower courts continue to follow.
In 1971, the court said any government role must have a
secular purpose, cannot favor or inhibit religion and cannot excessively
entangle church and state. Years later, it outsourced part of the decision-making
process to a "reasonable observer."
In 2005, the justices created exceptions to their original
test for passive religious displays, such as Nativity scenes or the Ten
Commandments. In a case upholding legislative prayer in 2014, they incorporated
history and tradition into the mix.
At the Supreme Court, the Trump administration joined dozens
of religious, municipal and veterans groups defending the memorial. They argued
that the court's mixed messages on religious liberty had forced legal battles
to be decided "display by display.”
Waiting in the wings are state and local governments across
the country that have their own monuments to worry about. The Veterans of
Foreign Wars and municipal groups had warned that hundreds could be affected,
from the steel beams that form the Ground Zero cross in New York City to a
memorial in Taos, New Mexico, that commemorates the Bataan Death March.
Two of the most prominent displays rise above Arlington
National Cemetery: the 13-foot Argonne Cross, erected in 1923 and dedicated to
"our men in France," and the 24-foot Canadian Cross of Sacrifice,
donated in 1927 to honor U.S. citizens who served abroad in the Canadian army.
A group of 30 states led by West Virginia listed dozens of
war monuments large and small that could be challenged if the Supreme Court
rules against the Peace Cross, from Gettysburg National Military Park in
Pennsylvania and Georgia's Chickamauga Battlefield to La Mesa, California, and
Coos Bay, Oregon.
The American Humanist Association, which brought the
challenge to the Maryland cross, disputed those numbers. The group won a
federal appeals court ruling last summer that threatens a 34-foot cross
towering over a city park in Pensacola, Florida, but it said few other displays
are in jeopardy.
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