More than 100 members of Congress are all trying to the get the Supreme Court to permit a giant Christian cross on public property.
The controversy centers around the “Peace Cross,” a World War I memorial, in Prince George’s County, Maryland. Last October, the U.S. Court of Appeals for the Fourth Circuit ruled 2-1 that the cross in the city of Bladensburg was unconstitutional because — just look at it — it’s nothing more than government promotion of Christianity. Call it a war memorial all you want, they argued, but any rational person seeing this would think it’s a promotion of Christianity.
Christian groups were obviously unhappy with that decision and asked the entire Fourth Circuit to reconsider the case. But the judges voted 8-6 against rehearing it this past March, so the earlier ruling is still in effect.
The Supreme Court is the only option left.
This 40-foot Christian symbol on public property, maintained by the Maryland National Capital Park and Planning Commission, has been up since 1925. The American Humanist Association’s Appignani Humanist Legal Center began urging the local government to take it down in 2012.
When that didn’t happen, the AHA filed a lawsuit in 2014. The subsequent legal battle for the AHA involved a setback at the district level, pushback from conservatives, and an appeal that was opposed by 26 attorneys general from across the nation.
But the AHA won. And they won again when the Fourth Circuit declined to rehear the case.
There’s one more hurdle now for the side of church/state separation: making sure the Supreme Court sees this as settled law and something they don’t need to wade into.
A group of 109 members of Congress — all Republicans except for Sen. Joe Manchin of West Virginia — are doing everything in their power to have the conservative court give it one last look.
“For 90 years, the families of Prince George’s County have honored America’s fallen heroes,” Sen. Cruz said. “Erected in the aftermath of World War I, the Peace Cross has stood as a testament to the courage and sacrifice of our soldiers, sailors, airmen, and marines. The American Humanist Association convinced the Fourth Circuit to adopt a perverse interpretation of the Establishment Clause, which in no way prohibits a war memorial on public land from featuring religious imagery. Our men and women in uniform will be better served by building more memorials to their bravery, not tearing them down. I am grateful for Representative Scalise’s leadership in the House, and I urge the Supreme Court to defend the religious liberty of every American.”
That “perverse interpretation of the Establishment Clause” is just taking the part about the government not establishing a religion literally. (I thought conservatives were all for that.)
The brief works the same way. It’s just a list of why that Giant Christian Cross isn’t really an establishment of religion. At one point, they even say the Appeals Court ruling “evinces a hostility to religion”… which suggests that government neutrality on religion is somehow unfair to Christians.
The members of Congress make two key points. The first is that the current ruling violates established law. They actually cite Greece v. Galloway, the decision that permitted religious invocations at city council meetings. That’s… weird. Greece made clear that explicitly Christian prayers were acceptable at government meetings, but only if people of other faiths were given the same opportunity. It’s not like the Bladensburg Cross has company or that such an option was ever on the table.
The second point is that letting the ruling stand would “jeopardize countless federal monuments, historic places, and national traditions.” Again, that’s nonsense. Federal monuments that consist of little more than a Christian symbol don’t belong on government property — at least not unless other displays are also accepted (hello, Satanists). Stand-alone crosses, even disguised as war memorials, never should have been built and “tradition” is no reason to keep them up.
If the current ruling is used to take down other similar Christian war memorials on government property, good. Christians aren’t the only people who have died for this country, and these members of Congress should be ashamed that their brief doesn’t recognize that.
Attorney Monica Miller, unlike Cruz, makes sensible points. The most important may be the fact that there’s no legal controversy here.
There is no Circuit split. The uniformity in this segment of Establishment Clause jurisprudence is remarkable in its own right. There are at least thirty cases holding crosses unconstitutional and only three outliers, but those outliers are the product of highly unique facts rather than legal disagreement. And every Circuit that has addressed the constitutionality of a cross memorial, including the Fourth, Seventh, Ninth, and Tenth Circuits, soundly held that it violates the Establishment Clause.
Miller also notes that the history of this particular cross is steeped in religion. You can’t pretend that it’s a war memorial that just happens to be in the shape of a cross when all the facts point to this display being a promotion of Christianity. After all, the Committee that commissioned it “intended to construct a ‘Calvary’ cross,
‘as described in the Bible.'” They said as much at the dedication too.
If that’s not enough, Miller adds, just look at how religious people defend the monument today:
Numerous avowed Christians expressed the sentiment that the Cross should remain because of its religious meaning. Indeed, even the Legion itself wrote that “[r]eligious imagery [on veterans’ memorials] serves to acknowledge that most people served by the memorial rest their eternal hopes on God or some religious sentiment.”
Miller also writes that, contrary to what the other side is arguing, declaring this monument unconstitutional will not lead to some domino effect toppling over other monuments. This case is about one cross and one cross only.
Ultimately, there’s no reason for the Supreme Court to waste its time with this case. It’s settled. The AHA was right when they argued it was unconstitutional. And as much as Ted Cruz, Steve Scalise, and their fellow conservatives want to fight for this Christian display, they have no good argument for keeping it up.
(Portions of this article were published earlier)