Here’s Why the Supreme Court Must Say the Bladensburg Cross Is Unconstitutional January 31, 2019

Here’s Why the Supreme Court Must Say the Bladensburg Cross Is Unconstitutional

Next month, the Supreme Court will hear oral arguments in The American Legion v. American Humanist Association. The case involves the 40-foot-tall “Peace Cross” (a.k.a. the Bladensburg Cross), a World War I memorial in Prince George’s County, Maryland.

While supporters of the cross say it’s a perfectly legal war memorial, the AHA argues that it’s really just a giant advertisement for Christianity — maintained using taxpayer dollars via the Maryland-National Capitol Park and Planning Commission — and any reasonable person looking at the cross would agree. If they lose the case, we may see an outpouring of Christian crosses erected on public property for ostensibly secular purposes… even though the real reason would be obvious to everyone.

You can read a longer history of the case right here, but in this post, I wanted to explain the main arguments that the AHA and its allies are making in defense of their position. The AHA submitted its written arguments last week and its allies submitted theirs yesterday.

Remember that the question at hand, as explained by the AHA’s attorney Monica Miller, is this: “Does the Establishment Clause allow the government to permanently and prominently commemorate Christian veterans — and only Christian veterans — by funding, maintaining, using, and displaying a massive concrete Latin cross in the center of a heavily-trafficked intersection at the entrance of town?”

The AHA says the answer is no — and that a decision against them would be a mistake — for the following reasons.

1) The Bladensburg Cross violates the Establishment Clause.

The cross is Christian. It’s the symbol everyone associates with Christianity. And if the government is promoting this cross/memorial, it’s aligning itself with a particular religion. That’s illegal.

2) The Bladensburg Cross effectively denigrates the contributions of non-Christian veterans.

If this really is meant to be a war memorial, then using a Christian symbol sends the message that non-Christians who sacrificed their lives for this country need not be memorialized. Supporters may argue the memorial represents all veterans, but the symbol they’re using is not some universal symbol of sacrifice. It’s a symbol of one particular religion. Obviously.

3) A victory for the government would be bad news for Christians.

If this cross is declared legal, think about what that would mean: The Supreme Court would basically be saying the cross is not a uniquely Christian symbol but rather some generic symbol representing death. In other words, when you see the cross, don’t think of Jesus. The devout Christians who treat the cross seriously would likely take offense to that. The AHA says a ruling in favor of the government, for this reason, would be a “Pyrrhic victory” for Christians.

4) The fact that this Cross has been up for decades doesn’t make it legal.

History and tradition aren’t good reasons to let something illegal slide. The Supreme Court has even said as much when it comes to Establishment Clause cases. Hell, they struck down forced prayer in public schools even though we’d been doing that for a long time.

5) The Cross isn’t merely some passive display.

Supporters of the memorial argue that it doesn’t “force” you to become a Christian, so what’s the big deal? The AHA says that’s irrelevant. This is a giant cross in the middle of a busy intersection. The Supreme Court has previously said a smaller cross atop city hall was already “extreme” and an “obvious” violation of the law… so this has to be worse, right? In addition, groups have used the Bladensburg Cross as the centerpiece for “Town-sponsored events that include Christian prayer.” So don’t say it’s just a passive symbol.

6) Saying the Bladensburg Cross is illegal would not affect other Christian war memorials.

Despite rumblings to the contrary, there are very few stand-alone giant cross memorials on public property. This one is uniquely illegal.

7) The Lemon Test is a good way to analyze the legality of religious displays, and we don’t want to mess that up.

The “Lemon Test” was established by the Supreme Court in 1971 as a way to objectively decide whether a religious statute violates the law. It says the statute must be secular in nature, neither advance nor inhibit religion, and not create some excessive entanglement between church and state. If any of those prongs are violated, the statute is illegal.

The Bladensburg Cross advances Christianity. You could even say it creates entanglement between church and state. It violates the Lemon Test. To say the cross is legal would mean throwing away the Lemon Test and a standard that has worked for several decades. Why mess with something that’s not broken?

8) No one’s asking for the Bladensburg Cross to be destroyed.

While one possible solution is to remove the “arms” of the cross and create a secular “obelisk” memorial, the AHA would be perfectly fine with it being moved to private property.

I would also note that one of the amicus briefs in the case raises another concern: Standing.

While the government wants this case judged on its merits, many of their advocates want the case dismissed on the grounds that the people suing don’t really have legal justification for doing so. In response, a number of law professors are telling the Court to ignore that line of thinking because dismissing the case on those grounds would ruin the whole concept of standing with regards to illegal religious displays.

If exposure to a government sponsored religious display is categorically insufficient to confer standing, then what is being displayed does not matter. There would be no standing in any religious-display case, however egregious its facts.

This Court’s Establishment Clause jurisprudence has been grounded in sensitivity and nuance. But these standing arguments are capable of neither. They would sweep aside generations of Establishment Clause doctrine and all the sensitivity and nuance embedded therein. These arguments are ones the Court should resist.

It’s a fair point: If the people who drive by this cross every day, as residents of the city, can’t complain about the promotion of Christianity, who can?

Another amicus brief braces for a loss and reminds the Court that saying the Bladensburg Cross is legal doesn’t mean governments should have blanket permission to erect Christian memorials everywhere. That’s because such a display going up now would have a very different meaning from when this one went up.

If the Court is unwilling to order the Bladensburg cross removed, it should turn to the bottom line of Justice Breyer’s opinion in Van Orden. If the Bladensburg cross can remain in place, it is only because, like the Texas Ten Commandments monument, it has been there for many decades.

The Bladensburg cross is also the fruit of a former establishment. It was erected at a time when Christians were dominant both numerically and politically, when they were free to exercise that dominance with little thought for religious minorities, and when there was no Jewish congregation in Prince George’s County.

But for government to erect such a cross today would be a very different thing, done in conscious disregard of religious minorities that are far more numerous and visible. Few governmental units could erect such a cross today without arousing major controversy.

The Court should hold the Bladensburg cross unconstitutional. But if it upholds this cross, it should not rely on the rationalizations proffered by petitioners. The Court should frankly acknowledge the deeply religious meaning of the cross. If it upholds this cross, it should be solely on the narrow ground that longstanding vestiges of former establishments can sometimes remain.

The oral arguments are schedule for February 27. It’ll be the AHA’s first time in front of the Supreme Court, and this will be the headliner church/state separation case in front of a bench that now includes Brett Kavanaugh. The numbers don’t look promising for our side, but it’s not only the decision that matters; the reasoning given by the justices will have profound implications as well.

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