The Hollman Report

Lessons from the Bladensburg cross case decision

by | Sep 23, 2019

A substantial majority of Americans identify as Christian, so why shouldn’t our government promote religion by displaying a Latin cross on public land?  In short, because doing so undermines religious liberty and ultimately harms religion.

In The American Legion v. American Humanist Association, the U.S. Supreme Court upheld a cross on government land, relying heavily on the unique 89-year history and use of this particular cross as a World War I memorial. The Court made an important distinction: “Retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones.”

The dispute began when local residents of Bladensburg, Maryland, and the American Humanist Association challenged a long-standing and physically imposing 40-foot cross that sits on government land at a major intersection. The case worked its way through the courts and was eventually resolved by the Supreme Court in June. The BJC filed a brief in support of those who challenged the government-sponsored cross as a violation of the First Amendment. We did so to defend the specific meaning of the cross and its importance to Christians, as well as to maintain the government’s promise of neutrality toward religion.

The case demonstrates how government subverts religion when it tries to use religion for its purposes, and the case answers the false claims that government neutrality toward religion amounts to hostility. The government sought to maintain the monument, known as the Bladensburg Peace Cross, by distorting its Christian message. The local government entity that owns the property on which the cross stands argued the cross is “objectively secular.” The Trump administration questioned whether this cross would even be viewed “as a religious display in the first place.” Many who sided with the government urged the Court to alter its standards in ways that would make it easier for government to advance religion. Fortunately, the Court rejected these arguments. While the 7-2 decision upholds the constitutionality of this memorial, it did not clear the way for more government-sponsored religion.

The majority held that this particular cross falls in a category of long-standing monuments, symbols and practices that may be presumed constitutional. On balance, a majority of the Court believed its removal would be inconsistent with the purposes of the First Amendment, one of which is to avoid religious divisiveness.

Lessons from the Court’s decision

The decision is narrower than the result. The fact that the Bladensburg Peace Cross was challenged as unconstitutional and remains on public land is not the main point for religious liberty. Government efforts to sponsor religious monuments, symbols or practices should continue to be scrutinized. The 7-2 decision was splintered, meaning seven justices agreed with the result but for different reasons. Justice Samuel Alito wrote the majority opinion. While Justices Stephen Breyer and Elena Kagan were in the majority, they both also wrote separately, and Kagan did not sign on to all of Alito’s opinion. Justices Neil Gorsuch and Clarence Thomas did not join the opinion, concurring only in the judgment and each writing a separate concurrence. Gorsuch wrote to explain why he would deny plaintiffs the opportunity to challenge government-sponsored religious displays. Thomas reiterated his unique view that the Constitution allows state establishments of religion. Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, dissented. The dissent rejected the notion that the meaning of the cross would change over time and that its display in this way is consistent with the government’s promise of neutrality toward religion.

There’s an important distinction between the religiosity of individual Americans and the promise of government neutrality toward religion. Individuals and faith communities are responsible for expressing religious messages and defining religious practices. While there is ample room to reflect religious influences in public life, the government should avoid advancing or denigrating religion in ways that undercut the principle that we are equal citizens under the law without regard to religion. Justice Alito’s opinion answers those who exaggerate the effects of enforcing a standard of government neutrality toward religion. There are many cases where religion is properly reflected on government land that do not send a message of government endorsement, such as where religious imagery is part of a larger artistic or historical display.  Importantly, he noted the obvious distinction between religious expression that reflects an individual’s religion on a gravestone — like those seen in Arlington National Cemetery — and a memorial honoring a diverse group of veterans or the military in general. Thousands of war monuments mark the service and sacrifice of the military without using religious imagery. Those memorials demonstrate that honoring veterans does not require altering our country’s commitment to religious liberty.

The Bladensburg Peace Cross has a distinct history that weighed in favor of maintaining it. Under the circumstances of this monument, the Court found that removing the cross would not appear neutral toward religion, but instead would appear to evince hostility and threaten divisiveness that the religion clauses are meant to avoid, especially in the local community. The Court recounted the 89 years the monument stood in tribute to 49 area soldiers who gave their lives in World War I; the lack of evidence that the monument was intended to promote a Christian message; its identification as a community landmark; and the danger that removing the memorial would be more divisive than retaining it.

The Court’s ruling does not require the state to maintain the cross on public land. As Justice Brett Kavanaugh wrote in his concurrence, “the Court is not the only guardian of individual rights in America.” The governmental entity that maintains the property would be within its power to find another resolution for this dispute, such as moving the memorial or selling it to a private owner. Justice Ginsburg’s dissent provides a strong incentive to find such an alternative. She emphasized the massive nature and undisputed prominence of the cross in a busy intersection which belies the notion that this particular memorial had only some incidental religious significance. She aptly described the threat that the majority’s decision would erode the Court’s commitment to neutrality, at least with regard to long-standing monuments, symbols and practices that now appear to enjoy a presumption of constitutionality. Citing history and precedence, she explains the essential role of government neutrality in protecting individual religious liberty without watering down religious messages.

The Court’s ruling demonstrates why Christians and others should speak up and prevent the government from misusing sacred symbols or denying religious liberty to minority religions. It is up to us to ensure that sacred symbols and practices are not demeaned in the service of the government’s political interests.

Citizens must use their voices to hold government accountable and promote religious liberty for all and live up to that “bedrock constitutional principle” that Justice Kavanaugh cited: “[A]ll citizens are equally American, no matter what religion they are, or if they have no religion at all.”

Sidebar: BJC brief in The American Legion v. American Humanist Association

BJC filed an important friend-of-the-court brief with University of Virginia Law Professor Doug Laycock, defending the Christian message of the cross and arguing against government promotion of religion. The American Jewish Committee, Central Conference of American Rabbis, Evangelical Lutheran Church in America, General Synod of the United Church of Christ, and the Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.) joined the brief.

Cited multiple times in Justice Ruth Bader Ginsburg’s dissent, the BJC brief clearly states, “The cross is not a secular symbol, and neither the Commission nor the Court can make it so.”

To read the BJC brief and access podcasts and additional articles from BJC on the Supreme Court decision, visit our website at BJConline.org/CrossCase.

Holly Hollman is general counsel of BJC.

This column appeared in the fall 2019 edition of Report from the Capital. You can read the entire magazine as a PDF or a digital flip-through edition.