Cross-shaped memorial pulls Supreme Court into church-state dispute

Advocates on the religious right are pushing the Supreme Court to hold that it’s constitutional for a cross-shaped war memorial to remain on public property and be maintained with public funds.

Ruling against them, they argue, would put hundreds of similar monuments across the country in jeopardy.

But opponents of a 40-foot concrete cross in Bladensburg, Md., say the court would defy democratic principles if the cross is allowed to stay.

The justices, who will hear arguments on Wednesday, are being asked to decide if the monument breaches the wall separating church and state, as the 4th Circuit Court of Appeals has ruled.

{mosads}When the American Legion established the memorial in 1925 with a group of mothers whose sons had died in World War I, it owned the property it sat on. But the Maryland-National Capital Park and Planning Commission took over the property in 1961 after the state said it was no longer safe for American Legion to own it. After years of roadway projects, the monument had come to be in the middle of a median.

Since then the bi-county agency has provided routine groundskeeping, illumination and occasional repair.

In its October 2017 opinion, the appeals court said the memorial was unconstitutional under the Establishment Clause of the First Amendment, which bars government officials from establishing or favoring one religion.

The court said the monument has the primary effect of endorsing religion and the commission’s ownership and maintenance of the cross excessively entangles the government with religion.

The American Legion and the Maryland-National Capital Park and Planning Commission are now appealing the court’s decision.

The American Humanist Association, which brought the case challenging the constitutionality of the cross, argue the 4th Circuit got it right. But some secularist groups worry the high court won’t come to the same conclusion with its new, solidly conservative majority.

“The fact that they accepted a case that had been won by the American Humanist Association (AHA) is an ominous sign,” said Annie Laurie Gaylor, co-president and co-founder of the Freedom From Religion Foundation.

“We do have a religious right takeover of our government and this is a product of that with the [Justice Brett] Kavanaugh appointment,” she said.

If the Supreme Court rules that the government can put Latin crosses on public property, Gaylor argues it will be the beginning of a Christian theocracy.

“Secularism is why you haven’t seen the religious skirmishes, warfare and bloodshed we’ve seen around the world when religion is part of government,” she said.

Others say it will hurt those outside mainstream Christianity.

“It will make religious minorities and those who don’t have any faith feel as if they are not as welcome or being treated equally in a public space and by their state and local governments,” said Sirine Shebaya, interim legal director at Muslim Advocates.

It takes four justices to hear a case, but with President Trump’s successful confirmations of Kavanaugh and Justice Neil Gorsuch to the court, the American Legion and the Commission may have the five votes they need to prevail.

The American Legion points to the court’s 2005 ruling upholding the constitutionality of a memorial of the Ten Commandments on the grounds of the Texas state capitol building. Justice Stephen Breyer, of the court’s liberal wing, wrote a separate opinion concurring with the judgment.

Breyer said the monument went unchallenged for 40 years and that the history suggests few individuals saw the monument as a government effort to establish a religion.

The American Legion argues the memorial in Maryland is indistinguishable from the monument in Texas.

Jeremy Dys, deputy general counsel at First Liberty Institute, which represents the American Legion, said if the court upholds the 4th Circuit ruling, other memorials will have to be bulldozed, such as the Canadian Cross of Sacrifice and the Argonne Cross in Arlington National Cemetery. He said someone might also be forced to take a sander to the Tomb of the Unknown Soldier, which bears the quote “Rests in honored glory an American soldier known but to God.”

But the appeals court didn’t order the cross — now crumbling and in need of repairs — to be demolished. The lower court left it up to the parties to bring the memorial in line with the Constitution.

While some have suggested cutting the arms off the cross or moving it to private property, Shebaya said the court could issue a compromise that allows the cross to remain where it is but prohibits the government from paying for its upkeep.

Proponents of religious liberty, however, say the court should clarify that the Establishment Clause is not violated unless a religious symbol on public property coerces others to believe in, observe or financially support a religion.

“I think our Founding Fathers wanted a First Amendment that prevented the government from coercing you into a religious belief or religious behavior, but the law has gone so far askew from that original intent,” Dys said.

-Updated Feb. 27 at 4:06 p.m.