Washington D.C. – The U.S. Supreme Court ruled Thursday that a World War I memorial in the image of a cross may remain standing on public land in Prince George’s County. The ruling overturns that of the lower courts who sided with the American Humanist Association (AHA) that the cross violated the Constitution’s separation of church and state.
Delivering the opinion of the court was Justice Samuel Alito who cited the difficulties in determining the “original purpose” of monuments erected long ago and that “the passage of time may obscure” the original intent, making a monument historically significant. Alito goes on to state that removing monuments and memorials like the Bladensburg cross may “no longer appear neutral” given their significance to the community.
The Bladensburg Cross was erected by the American Legion in 1925 after assuming control of the project from a committee of Prince George’s County residents. The committee decided on the plain Latin cross design because of its prominence as a central symbol during the first World War. Sitting in a median strip of the National Defense Highway that connects Washington to Annapolis. According to court documents, the Maryland-National Capital Park and Planning Commission acquired the cross and the land in 1961. The AHA, a “nontheist” organization that advocates for “progressive values and equality” for various nontheists, filed a suit in District Court, alleging that the cross’s presence on public land and use of public funds for maintenance violated the Establishment Clause of the First Amendment.
The case was decided 7-2 but the opinions of the justices were not completely aligned, as evident from the 80 pages of opinions written by seven of the court’s justices. Several of the justices writing concurring opinions expressed their desire to see the standard set by Lemon v. Kurtzman, “discredited,” to varying degrees.
In his opinion, Justice Neil Gorsuch summarized the Lemon test as determining the action in question’s “(1) purpose, (2) effect, and (3) potential to ‘excessive[ly]… entangle[e]’ church and state.” The test has been used as a standard for Establishment Clause cases since 1971 but, as outlined by Alito in the majority opinion, “In many cases [the Supreme Court] has either expressly declined to apply the test or has simply ignored it.”
The highest court’s newest member, Justice Brett Kavanaugh, wrote a separate opinion to “emphasize two points.” Kavanaugh first expressed his desire to establish a new standard, replacing the Lemon Test with one that is “based on history, tradition, and precedent.” He then used his opinion to express empathy towards minority religions, stating that he has “deep respect for the plaintiffs’ sincere objections to seeing the cross on public land.” He went on to explain that the court’s ruling does not mean that its objectors have no means of recourse. He instead encourages them to move through avenues of local or state government to remove or modify the cross.
Justice Ruth Bader Ginsburg was joined by Justice Sonia Sotomayor for the dissenting opinion that the Supreme Court’s decision “erodes” their neutrality commitment, “diminishing precedent designed to preserve individual liberty and civic harmony in favor of a ‘presumption of constitutionality for longstanding monuments, symbols, and practices.’” The justice argues that regardless of historical context, the cross is the “foremost symbol of the Christian faith” and that “using the cross as a war memorial does not transform it into a secular symbol.”
Prior to the case going to the Supreme Court, a federal appeals court ruled that the cross should be moved to private land or altered. The judges, in that case, cited the third part of the Lemon Test in their decision, stating that the memorial has the “primary effect of endorsing religion and excessively entangl[ing] the government in religion.” The Supreme Court’s decision on Thursday reversed that ruling.
The Supreme Court’s full opinions on the American Legion v. American Humanist Assn. case can be read here.
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