Deseret News // By Kelsey Dallas
SALT LAKE CITY — If a World War I memorial is shaped like a cross, does that make it a religious symbol? Even faith groups don’t agree on the answer to that question, which is before the Supreme Court this week.
The American Legion, et al. v. American Humanist Association centers on a 40-foot-tall, cross-shaped monument in Bladensburg, Maryland, which is maintained with government funds. By the end of June, justices must decide if this arrangement violates the Constitution’s establishment clause, which bans the government from privileging one faith group over others, and, if it does, whether the cross should be altered or removed.
Briefs filed in the case, which will be heard on Wednesday, reveal conflicting claims about the monument within and between faith groups and religious freedom organizations.
Supporters of the so-called “Peace Cross” say its secular purpose outweighs its association with Christianity, while opponents say it’s undeniably and unlawfully religious.
“Maintaining a nearly century-old war memorial at a busy intersection is hardly an official declaration in law that Christianity is the government’s preferred religion,” argues a brief in support of the Bladensburg cross signed by The Church of Jesus Christ of Latter-day Saints, the National Association of Evangelicals, the Lutheran Church-Missouri Synod and four other religious organizations.
On the other hand, faith groups opposing the cross filed briefs stating that even the appearance of religious favoritism is a problem.
“A government-sponsored cross takes sides on competing claims to religious truth,” reads a brief signed by the Baptist Joint Committee for Religious Liberty, the Evangelical Lutheran Church in America, the general synod of the United Church of Christ and three other religious groups.
In this case, as in other high-profile religion cases in recent terms, faith groups present different visions of the government’s ideal relationship to religion, clashing over what ruling would be best for a pluralistic society.
Their briefs and others filed over the last two months, which will help justices understand the broader ramifications of their eventual ruling, correct the misconception that The American Legion, et al. v. American Humanist Association pits nonbelievers against everyone else, according to Monica Miller, senior counsel at the American Humanist Association.
“This is not an atheist case. It’s an everyone case,” she said.
The Bladensburg cross case originated in 2014, when the American Humanist Association and three Maryland residents sued the Maryland-National Capital Park and Planning Commission. The commission has overseen upkeep of the cross since the 1960s. It was originally dedicated by the American Legion in 1925.
The lawsuit claimed that by funding the care of a giant cross, the government was unlawfully privileging one faith group, Christianity, over others. Case documents note that about $117,000 of government money has been spent on the memorial over the last six decades.
“When the government prominently displays a large Latin cross as a war memorial, it does more than just align the state with Christianity; it also callously discriminates against patriotic soldiers who are not Christian,” reads the American Humanist Association’s latest brief.
The commission and the American Legion, which joined the lawsuit early in the proceedings to defend the cross, maintain that it is first and foremost a WWI memorial honoring the lives of 49 men from Prince George’s County, Maryland. They say the cross was used as a symbol of sacrifice during the WWI era, noting there are four other cross-shaped memorials within 40 miles of the Peace Cross.
“Its context and history make plain that it was intended to serve — and, for 93 years, has served — as a secular memorial to the war dead,” reads a brief submitted by the Maryland-National Capital Park and Planning Commission to the Supreme Court.
A U.S. district court agreed with the commission’s arguments, but the decision was later reversed by the 4th Circuit Court of Appeals.
“Even in the memorial context, a Latin cross serves not simply as a generic symbol of death, but rather a Christian symbol of the death of Jesus Christ,” the ruling explained.
The Maryand-National Capital Park and Planning Commission and the American Legion then appealed to the Supreme Court, which announced in November that it would hear the case.
A wide variety of individuals and organizations filed amicus briefs in the case, which are legal documents that spell out the concerns of groups that aren’t parties in the lawsuit. These briefs covered a number of topics, including the proper application of the establishment clause, the significance of war memorials and reasons why a cross-shaped monument is or is not a religious symbol.
As with faith groups, there are veterans organizations, civil rights groups and legal scholars on both sides of the case. The opposing arguments offered by similar groups can be explained, in part, by widespread disagreement over the proper relationship between the government and religion, which the Deseret News reported on last month.
“This whole area of law is really a mess,” said Kelly Shackelford, president, CEO and chief counsel for First Liberty Institute, at the time.
The cross’ supporters argue that the establishment clause prevents the government from actively coercing Americans to change their beliefs, not from passive involvement in religion. They say the Bladensburg cross is not meant to convey a religious message and that, even if passerby assume it does, that shouldn’t be a legal problem.
“Allowing the cross to remain is not an establishment (of religion), and anyone who dislikes the cross is free to ignore it,” reads the brief from the Becket Fund for Religion Liberty, a prominent religious freedom law firm.
In a religiously plural society, the government should practice “benevolent neutrality,” not avoid religion altogether, said Ismail Royer, director of the Islam and Religious Freedom Action Team at the Religious Freedom Institute, which filed a brief in support of the Bladensburg cross.
“The notion of completely eliminating religion from the public square is antithetical to the founders’ idea that religion is a public good to be encouraged,” he said.
The cross’ opponents, on the other hand, argue that the government must take care not to take sides in religious debates. Paying for the upkeep of the cross is an affront to non-Christian citizens, said Holly Hollman, general counsel of the Baptist Joint Committee for Religious Liberty.
“This case represents a threat to the principle that the government will not pick and choose a preferred religious tradition to promote,” she said.
Christians should also be offended by the government’s actions and arguments, said Frederick Gedicks, a law professor at Brigham Young University who joined a brief from legal scholars against the Bladensburg cross.
“The government is arguing that this (cross) is not really religious, that it’s a vestige of the past,” he said. “If you’re a believing Christian, you don’t want to think of the cross as an artifact from the past.”
As Gedicks noted, The American Legion, et al. v. American Humanist Association has sparked theological debates in addition to legal ones. Some faith groups have no problem saying that crosses can be used for secular purposes, while others argue that it’s offensive to downplay their religious significance.
What’s confusing is that many of the same groups arguing that the Bladensburg cross is predominately a secular symbol believe a ruling against this memorial would represent an attack on religion, he added. They say the American Humanist Association’s goal is to ban all religious expression from the public square.
“If the (4th Circuit’s) ruling stands, then you’ve got to go into Arlington (National) Cemetery and tear down large, free-standing crosses,” Shackelford said. “I think that’s an image that most Americans can’t even fathom.”
Miller denies this would happen. As briefs filed by the American Humanist Association and its supporters make clear, the lawsuit is aimed at reducing harmful entanglement between the government and religion, not eradicating faith from public life, she said.
“The idea that we have a bulldozer ready is sensationalizing the situation,” Miller noted, adding that she’s thankful a variety of Christian, Muslim, Jewish and other religious groups agree.
“The separation of church and state is for everyone. It protects religion as much as it does nonreligion,” Miller said.
It’s difficult to predict the Supreme Court’s eventual ruling, which is expected before the end of June, according to legal experts on both sides of the case. Justices could issue a narrow decision that applies to just the Bladensburg cross or a broad one that changes how the establishment clause is applied moving forward.
Hollman hopes the ruling will acknowledge the religious significance of the cross, even if the Supreme Court allows the government to continue funding its upkeep.
“It may be grandfathered in as a historic cross,” she said. The court could “uphold this (cross) without encouraging political leaders to promote more specific religious imagery on government property” in the future.
Royer, on the other hand, wants justices to affirm that the government does have a role to play in protecting religious expression in the public square.
“We hope the court will recognize that … religious content in public monuments is not something to try to eliminate, but something to be tolerated and celebrated as a public good,” he said.