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The U.S. Supreme Court decision will allow a cross-shaped war memorial on public land in Maryland to stay put. But it has broader implications as well.
Long-standing monuments with religious overtones and links to state or local governments are likely safer from constitutional lawsuits in federal court following a U.S. Supreme Court ruling on Thursday that will allow a 40-foot-tall cross honoring fallen soldiers to remain intact.
The 7-2 decision, which overturned an appeals court ruling, says the “peace cross,” located at a busy intersection in Bladensburg, Maryland, near Washington, D.C., does not violate the constitutional mandate requiring a separation between church and state.
Completed in the 1920s, the cross was built as a monument to 49 local soldiers who died in World War I. Both the cross and the traffic island where it stands are owned and maintained by the Maryland-National Capital Park and Planning Commission.
While the cross is a Christian symbol, Justice Samuel Alito, who authored the lead opinion for the majority, emphasizes that plain white crosses also marked overseas graves of soldiers and says the use of the cross at the memorial must be viewed in that historical context.
He outlines four considerations that show why retaining established “religiously expressive” monuments, symbols or practices is different from building or adopting new ones.
One is that it can be difficult to determine their original purpose. Another is that this purpose can expand or change over time. A third is that the message of the monument, symbol or practice may evolve.
And a fourth consideration, according to Alito, is that eliminating a monument like the Maryland cross may, after a certain amount of time, no longer appear to be neutral.
“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,” Alito wrote.
“A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion,” he added. “The passage of time gives rise to a strong presumption of constitutionality.”
Rich Schragger, a law professor at the University of Virginia, said a key takeaway from the ruling is that there is a presumption of constitutionality for government-affiliated religious displays if they’ve been around for a long time—though there is no hard rule for how long a display must be in place before it clears this legal threshold.
This aspect of the ruling tracks with a 2005 Supreme Court decision rejecting a challenge against a Ten Commandments display on the grounds of Texas’ state capitol building.
“I think what the court is trying to do is put an end to disputes about long-standing memorials, which have become flash points in the culture wars in some ways,” said Schragger, who focuses some of his work on the intersection of constitutional law and local government.
“Whether they’re successful in doing that I think is questionable," he added. "I think there will continue to be debates.”
Schragger says the high court’s ruling is also notable for how it implies a cross’s meaning can shift over time—even if it may have had more overt religious connotations in an earlier era—in this case becoming a secular symbol that is a tribute to fallen soldiers.
“If your monument is old enough, and has been around for a long time without being challenged, you will be encouraged by this decision,” Schragger said. “But you shouldn’t take it as a license to go out and build new ones,” he added. “They’re making a distinction there.”
Joe Davis, an attorney with the Becket Fund for Religious Liberty, a non-profit group that describes itself as working to protect the free expression of all faiths, said the ruling is important. And he, too, noted its presumption of constitutionality for long-standing displays.
The Becket Fund, he said, is currently working on two cases that involve related issues.
One concerns a cross in a park in Pensacola, Florida that’s been there since the 1940s, and another involves a cross on the county seal of Lehigh County, Pennsylvania. Thursday’s ruling, Davis believes, should help bolster legal arguments that these displays are constitutional.
“It is a clear signal that we’re not going to go around and require people to scrub long-standing religious displays from the public square,” Davis said.
“I’m optimistic that the court’s opinion today should put a damper on some of these cases,” he added. “These lawsuits are often more divisive than the symbols themselves.”
The American Humanist Association filed the lawsuit over the cross, representing local residents and claiming that the memorial’s presence on public land and the use of public money to maintain it offends them and runs afoul of the Establishment Clause of the First Amendment.
The clause blocks the federal government and the states from making laws “respecting an establishment of religion.”
Monica Miller, senior counsel at the American Humanist Association, said that while the cross will be allowed to stand, the ruling stopped short of undermining more overarching legal precedents that forbid government-sponsored religious symbols.
The group also said that the court by ruling the way it did has failed to honor the sacrifices Jewish soldiers made during the first world war.
Rachel Laser, president and CEO of Americans United for Separation of Church and State, also condemned the ruling.
“The Supreme Court’s misguided decision to allow government to play favorites and prominently display religious symbols as public war memorials dishonors our country’s veterans and the fundamental principle of religious freedom they fought and died for,” she said.
“Just because something is a tradition doesn’t make it right,” Laser added.
The American Legion, which helped to complete the cross memorial back in the 1920s and intervened in the court case to defend it, applauded the outcome.
“This was not just about a single cross,” said the group’s national commander, Brett Reistad. “This was about the right of a community to honor its fallen heroes.”
Vice President Mike Pence also weighed in on Twitter, saying that the court ruling “honors our fallen heroes and the symbols of faith that commemorate their sacrifice.”
Others who joined Alito in the majority included Chief Justice John Roberts, Justices Stephen Breyer, Elena Kagan, Brett Kavanaugh, Clarence Thomas and Neil Gorsuch.
All the justices did not back Alito’s opinion in its entirety, and Thomas and Gorsuch did not sign onto it, filing separate concurring opinions.
In a dissenting opinion, Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, said that using a cross as a war memorial does not transform it into a secular symbol.
She wrote that the court decades ago recognized that the Establishment Clause demands governmental neutrality among religious faiths, and between religion and nonreligion and that “today the Court erodes that neutrality commitment.”
“By maintaining the Peace Cross on a public highway,” Ginsburg added, “the Commission elevates Christianity over other faiths, and religion over nonreligion.”
“When a cross is displayed on public property, the government may be presumed to endorse its religious content,” she went on to say. “The venue is surely associated with the State; the symbol and its meaning are just as surely associated exclusively with Christianity.”
The National League of Cities, National Association of Counties and other groups in a brief filed in the case called on the court to provide clearer standards to guide cases that involve questions about whether displays like the cross are allowed under the First Amendment.
“I think the clarity we got is if it’s an old monument with a religious bent, it’s presumed to be constitutional,” said Lisa Soronen, executive director of the State and Local Legal Center. “For this narrow subset of old memorials,” she added, “it creates a pretty bright line.”
This story has been updated.
Bill Lucia is a Senior Reporter for Route Fifty and is based in Olympia, Washington.