The Constitution’s establishment clause indicates that the government “shall make no law respecting an establishment of religion.” In 2005, the Supreme Court rejected a challenge under the establishment clause to a Ten Commandments monument on the grounds of Texas state capitol. In his controlling opinion, Justice Stephen Breyer concluded that, although the monument’s text “undeniably has a religious message,” it did not violate the Constitution because it was part of a display that communicates a secular message; moreover, he added, the absence of any other challenges during the 40 years that the monument has stood on the capitol grounds suggested that the public has also regarded the monument as “part of what is a broader moral and historical message.” When the justices meet for their conference today, they will consider another establishment clause challenge to a monument on public property – this time, in the shape of a cross.
The monument at issue is the “Peace Cross,” which was erected in 1925 in Bladensburg, Maryland—in the Washington, D.C., suburbs—to commemorate the 49 soldiers from Prince George’s County, Maryland who died in World War I. The cross stands on public land and lists the soldiers’ names, along with quotes from former president Woodrow Wilson.
In 2014, the American Humanist Association – which describes itself as “the leading progressive voice in America on behalf of humanists, atheists, agnostics, and freethinkers” – and three area residents sued the Maryland-National Capital Park and Planning Commission, which maintains the monument. They alleged that because it is in the form of a cross, the monument endorses Christianity, in violation of the Establishment Clause.
A federal district court in Maryland ruled for the commission, concluding that the “predominant purpose” of the cross was secular, as were the monument’s “history and context.” The AHA appealed, and a three-judge panel of the U.S. Court of Appeals for the 4th Circuit reversed. It held that the memorial “endorses Christianity,” because it is in the shape of a cross, regardless of the history and context of the memorial. The commission’s maintenance of the cross, the court of appeals added, creates “excessive entanglement between government and religion.” The full 4th Circuit denied the commission’s request to rehear the case, by a vote of 8 to 6.
In June, the commission asked the Supreme Court to weigh in, describing the lower court’s ruling as “grievously incorrect.” The Supreme Court, the commission wrote in its petition for review, “has recognized that passive displays—particularly those that have stood without challenge for decades—may constitutionally employ religious symbols in order to convey a predominantly nonreligious message.” If the 4th Circuit’s ruling is allowed to stand, the commission warned, hundreds of similar monuments will also be in jeopardy, including at Arlington National Cemetery. Moreover, the commission told the justices, the Supreme Court’s intervention is required because the courts of appeals are sharply divided on two questions arising from the case: whether the Constitution allows the cross to be used as a commemorative symbol and, more broadly, how to resolve cases like these.
In its brief, the AHA urged the court to deny review, noting that the cross is “rapidly deteriorating” and that even government officials “have expressed relief at the prospect of it crumbling down on its own.” The AHA pushed back against the merits of the commission’s claims, telling the justices that “there is no dispute that the cross was only intended to honor Christian veterans of World War I. But in any event, the AHA concluded, the justices should stay out of the case at this point, when “no final judgment has been rendered and it remains unclear precisely what action the government must take on remand.”
The commission’s petition and a similar petition for review by the American Legion, which deeded the land to the commission, have been distributed for the justices’ private conference today. If they opt to grant review, we could hear an announcement regarding the petitions as soon as Thursday, September 27. However, another petition involving a cross on public land was filed last week, by the city of Pensacola, Florida. If the justices opt to wait to consider all three petitions at once, we might not hear more until later this fall.
