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Separation of Church and State issues:

Part 2 of two parts

The fate of the "Peace Cross" in Bladensburg, MD

This article is continued here, from Part 1

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2018-NOV-02: Maryland lawsuit is appealed to higher courts:

The Peace Cross case was appealed to the U.S. Court of Appeals for the 4th Circuit. On 2017-OCT-17, by a 2:1 decision, a three-judge panel of the court determined that the Peace Cross is unconstitutional because it:

"... has the primary effect of endorsing religion and excessively entangles the government in religion." 1

Judge Stephanie D. Thacker wrote the majority opinion -- a 33 page document. She said:

"... the display aggrandizes the Latin cross," 2 so that a casual observer would conclude that the state government is preferentially endorsing Christianity above other religious beliefs, and [above] no religious belief.

She also said that:

"The Latin cross is the core symbol of Christianity. And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland, and maintained with thousands of dollars in government funds." 93

She concluded:

“"The monument here has the primary effect of endorsing religion and excessively entangles the government in religion. The Latin cross is the core symbol of Christianity. And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds. Therefore, we hold that the purported war memorial breaches the wall of separation between Church and State'."

The establishment clause of the First Amendment of the U.S. Constitution states:

"Congress shall make no law respecting an establishment of religion."

Roy Speckhardt, the executive director, of the AHA said:

"Government war memorials should respect all veterans, not just those from one religious group." 3

Jason Torpy, a U.S. Army veteran and president of the Military Association of Atheists and Freethinkers, said:

"In a sense, I feel that the Bladensburg Cross is a slap in the face to all of us non-Christian service members who have risked our lives to serve this country." 16

The Maryland-National Capital Park and Planning Commission, which owns the cross and the site on which it stands, joined with the American Legion in asking that the case be reheard by the full Court of Appeals. That request was denied. 2

During early 2018-NOV, the U.S. Supreme Court accepted an appeal of the Court of Appeal's decision. 1

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Arguments made for and against the preservation of the Peace Cross in its present location:

Maryland state Senator Will Smith, (D) said that the cross is constitutional. It:

"... is not something that is akin to, say, the Ten Commandments being put on the steps of the courthouse." 2

In a brief to the U.S. Supreme Court that urged the U.S. Supreme Court to accept an appeal from the Court of Appeals, Maryland officials disagreed with the lower court's ruling. They stated that the cross conveys mainly a secular message of remembrance. They said that a decision to remove or destroy the cross would remove:

" a cherished war memorial that has served as a site of solemn commemoration and civic unity for nearly a century."

That is, the state is opposed either to the destruction of the cross, or its relocation to a different site.

Monica Miller, senior counsel for the American Humanist Association, pointed out that:

"The government can’t prefer one religion over another, and it certainly can’t do so by placing a 40-foot Christian cross in the middle of a busy highway intersection. ... Without a doubt, it does not recognize or honor the service of [any] non-Christian veterans." 2

House Majority Whip Steve Scalise (R-LA) expressed concern that if the High Court finds the Peace Cross unconstitutional because it is located on public land, then grave markers at public cemeteries like the Arlington National Cemetery may also be unconstitutional. He speculates:

"... this isn't just about honoring the 49 men from Prince George's County who died. It's about the 400,000 graves just 13 miles away in Arlington Cemetery -- and millions more headstones across America. Scalise, who helped organize a brief from members of Congress, has been pushing the court to take this case and end the ongoing feud over public displays -- once and for all.

This is such an important case... if they take down Bladensburg, they're going after Arlington [Cemetery]. They're going after every marker on public land that has some kind of religious symbol -- whether it's the cross or Star of David. This is how people want to be remembered in their death, especially if they sacrificed their lives for our country. To think that a court decision could take that ability away... I'm so glad that Justice Kavanaugh is on the bench to participate in this case, along with Neil Gorsuch, because it means President Trump will definitely have a lasting imprint on this decision -- and hopefully, it's the right decision."

As in the case of the Peace Cross, the question of grave markers in Arlington and elsewhere could be easily solved by transferring ownership of the cemeteries from a government agency to a non-profit group. Such a group should have no difficulty in raising sufficient funding to support their activities.

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Comment by Rewire.news:

Andrew L. Seidel of the Freedom From Religion Foundation wrote:

"The Supreme Court often -- though by no means always -- overturns cases it agrees to hear. AHA has to win over at least one conservative justice, so many fear that the Court will allow the cross to stand. But doing so would fly in the face of precedent. With the exception of allowing a makeshift cross at the 9/11 Memorial Museum, no final decision in any federal court has allowed the government to maintain and display a Christian cross on government land.

Rightfully so. The cross is the symbol of Christianity. Using the cross as a collective war memorial not only disparages every Jewish, atheist, Buddhist, Sikh, Muslim, and other non-Christian in our military, it also represents -- in 40 feet of concrete -- the government aligning itself with one religion. (This, of course, is entirely different from the government maintaining a cemetery where individual soldiers choose personal memorials with religious imagery, including crosses; in other words, comparisons to the rows of crosses at ... [the Normandy American Cemetery and Memorial] or Arlington National Cemetery are irrelevant.) ..."

The attack on the wall of separation between state and church is an attack on a fundamental freedom. It’s an attack on our Constitution. But it’s also an attack on true religious freedom. There can be no freedom of religion without a government that is free from religion. A secular government is the only guarantee of true religious freedom and, with this Supreme Court, it is in very real danger. We’ll know just how much when the court decides the fate of this cross." 5

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2019-JUN-20: U.S. Supreme Court rules in favor of the integration of Church and State:

The U.S. Supreme Court agreed with the request of the Trump Administration to allow the cross to stay on public land in Bladensburg, Maryland. The case is: American Legion v. American Humanist Association. The Justices' vote was 7 to 2. Justice Alito wrote the majority opinion for the court, saying:

"... contrary to respondents' intimations, there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. The Religion Clause of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim." 6, 7

Mark Joseph Stern, writing for Slate.com, said that the Court's ruling:

"... rests on a magic trick: The majority transmogrified the cross, a 'preeminent Christian symbol,' into a monument with a 'secular meaning.' This is no mean feat. The cross in question rests at the center of a busy intersection in Bladensburg, Maryland. It towers over everything around it. Completed in 1925, the 'Bladensburg Peace Cross' was designed as a tribute to 49 area soldiers who died in World War I. At its dedication ceremony, a Catholic priest gave an invocation; state representatives encouraged the community to view the monument as 'symbolic of Calvary'; and the ceremony ended with a benediction provided by a Baptist pastor. The Bladensburg cross is, indisputably, a symbol of Christianity."8

Curiously, the majority of Justices on the court ruled that the cross had become a secular symbol over time. Yet, they also said that if the cross was ordered to be moved, that the court's ruling might be interpreted by the public as hostile and anti-Christian.

Only Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor, dissented. Justice Ginsburg’s opinion states that the cross represents the:

"... central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life. ..."

"As I see it when a cross is displayed on public property, the government may be presumed to endorse its religious content.... [The cross] elevates Christianity over other faiths, and religion over non religion. ... [It] affirms that, thanks to the soldier’s embrace of Christianity, he will be rewarded with eternal life." ... The “overwhelming majority of World War I memorials contain no Latin cross." ... The cross actively implies "... official recognition of [Christianity] paramountcy and thus contravenes the Establishment Clause." 8

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2019-JUN-24: The Family Policy Alliance Team commented on the High Court's decision:

The Team is an evangelical Christian group. Their Policy Manager is Brittany Jones. Referring to the American Humanist Association -- the the plaintiffs in the case -- she said:

"The Cross stood relatively unmolested until several years ago when a group of atheists decided that merely viewing the Cross was offensive. ... We are thankful for the Court protecting religious freedom in this case, and we look forward to working with state legislators and allies to advance policies that allow religious freedom to flourish for all." 9

That is a curious response, because the goal of the AHA was to have the cross removed from its present location in the middle of vehicle traffic to another location where it could be easily visited, viewed close up, and enjoyed in a quiet setting, under the ownership and care of a non-profit group, and with nearby car parking.

She referred to the cross:

"As a way of memorializing those who died defending freedom in World War I.

In reality, the Cross memorializes only those who died who were Christians. The cross does not represent well the fallen who were Agnostics Atheists, Jews, Muslims, those who followed Native American religions, etc.

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About the "Lemon test:"

This was a series of criteria that was defined in a Supreme Court ruling in the case Lemon vs. Kurtzman, 1971. It says that, to meet the First Amendment and thus be constitutional, a law must:

  1. have a secular purpose, and 

  2. be neutral towards religion - neither hindering nor advancing it, and

  3. not result in excessive entanglements between the government and religion.

Rather than recognize the Lemon Test as an integral part of an important decision by the U.S. Supreme Court. Brittany Jones of the Family Policy Alliance Team refers to it as:

"... an arbitrary legal test ... The arbitrary nature of this test was highlighted in 2005 when the Supreme Court issued rulings on two different sets of religious monuments or displays on the same day and came to opposite conclusions. ..." 17

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Supreme Court agrees to hear case to determine if Maryland's Peace Cross violates the Constitution," The Baltimore Sun, 2018-NOV-03, at: https://www.baltimoresun.com/
  2. Mike Murillo, "Peace Cross in Bladensburg could become center of Supreme Court fight," WTOP-FM, 2018-AUG-02, at: https://wtop.com/
  3. John Fritze, "Appeals court rules that Peace Cross in Bladensburg violates the Constitution," The Baltimore Sun, 2017-OCT-18, at: https://www.baltimoresun.com/
  4. Liz Hayes, "Church-State Separation At The Crossroads: Will The Supreme Court Approve Government Use Of The Preeminent Symbol Of Christianity As A War Memorial For All?," Church & State Magazine, 2019-JAN, at: https://www.au.org/
  5. Andrew L. Seidel, "The Supreme Court Case That Could Bring Down the Wall of Separation Between Church and State," Rewire. News, 2018-NOV-12, at: https://rewire.news/
  6. "American Legion v. American Humanist Association," U.S. Supreme Court, 2019-JUN-20, at: https://www.supremecourt.gov/
  7. Nina Totenberg, "Supreme Court: Cross Can Stand On Public Land In Separation Of Church And State Case." NPR, 2019-Jun-20, at: https://www.npr.org/
  8. Mark Joseph Stern, "The Supreme Court’s Giant Cross Compromise Will Erode the Separation of Church and State." Slate, 2019-JUN-20. at: https://slate.com/
  9. Brittany Jones, "Victory for the Bladensburg Cross = A Victory for ALL of Us," Family Policy Alliance, at: https://familypolicyalliance.com/

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How you may have arrived here:

Site navigation: Home page > Religion & law > Separation of church and state > here

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Copyright © Ontario Consultants on Religious Tolerance
Author: B.A. Robinson
Originally posted on: 2018-NOV-08
Most recent update: 2019-JUN-30

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