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What just happened?

The Supreme Court issued a ruling Thursday in American Legion v. American Humanist Association—also known as the Bladensburg Cross case. The Court ruled that the 40-foot-tall stone and concrete “Peace Cross” memorial displayed on government-owned property in Bladensburg, Maryland, outside Washington, D.C., does not violate the Establishment Clause.

What was the case about?

Residents of Prince George’s County, Maryland, erected the large cross in 1925 as a memorial for the soldiers in the area who were killed in World War I. The cross was built by the American Legion but is owned and maintained the State of Maryland. In 2012 some local residents filed a lawsuit seeking to have the cross removed, claiming that it violated the clause in the U.S. Constitution barring government from establishing an official religion and favoring one religion over another.

What was the lower court ruling?

A federal district court ruled that the cross did not violate the Constitution because the state was using it to honor veterans rather than promote religion. However, the U.S. Court of Appeals for the 4th Circuit reversed that decision based on the presumption that the average citizen would assume the cross represented Christianity.

What did the Supreme Court rule?

The Supreme Court reversed the 4th Circuit decision and delivered the opinion that the Bladensburg Cross does not violate the Establishment Clause.

The Court said there are at least four considerations that show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones:

(1) Such cases often concern monuments, symbols, or practices that were first established long ago, and thus, identifying their original purpose or purposes may be especially difficult.

(2) As time goes by, the purposes associated with an established monument, symbol, or practice often multiply, as in the Ten Commandments monuments. Even if the monument’s original purpose was infused with religion, the passage of time may obscure that sentiment, and the monument may be retained for the sake of its historical significance or its place in a common cultural heritage.

(3) The message of a monument, symbol, or practice may evolve. Familiarity itself can become a reason for preservation.

(4) When time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community. The passage of time thus gives rise to a presumption of constitutionality.

The Court determined that by applying these principles the Bladensburg Cross did not violate the Establishment Clause.

“The image of the simple wooden cross that originally marked the graves of American soldiers killed in World War I became a symbol of their sacrifice, and the design of the Bladensburg Cross must be understood in light of that background,” the Court said. “That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials.”

How did the justices vote in this case?

The decision was 7-2, with Justices Ruth Bader Ginsburg and Sonia Sotomayor dissenting.

What was the reason for the dissent?

In their dissent Ginsburg and Sotomayor note that the Latin cross is the foremost symbol of the Christian faith, and cite a brief stating that the cross in embodying 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.” They add,

Precisely because the cross symbolizes these sectarian beliefs, it is a common marker for the graves of Christian soldiers. For the same reason, using the cross as a war memorial does not transform it into a secular symbol, as the Courts of Appeals have uniformly recognized. Just as a Star of David is not suitable to honor Christians who died serving their country, so a cross is not suitable to honor those of other faiths who died defending their nation. Soldiers of all faiths “are united by their love of country, but they are not united by the cross.” (Brief for Amicus Jewish War Veterans)

By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion. Memorializing the service of American soldiers is an “admirable and unquestionably secular” objective. But the Commission does not serve that objective by displaying a symbol that bears “a starkly sectarian message.”

What are the implications for religious liberty?

This ruling is a victory for religious liberty—though the faith that won is a denuded civil religion.

The Court’s decision affirmed that a religious symbol could be allowed on government property if passage of time had made the religious intent unknown or the religious sentiment obscured or the religious symbolism dulled by familiarity. While not directly saying that such symbols had to be secular, the consensus view that was able to attract a majority of the justices was that the cross had to lose its association with Jesus to pass Constitutional muster.

While the majority came to the right conclusion for the wrong reasons, the minority of Ginsburg and Sotomayor were wrong in their dissent but recognized the reality that “using the cross as a war memorial does not transform it into a secular symbol.”

While we can applaud the outcome we should recognize that it’s not a victory to have the cross stripped of its connection to Jesus. As historian Thomas Kidd says, “I agree with today’s Bladensburg cross case ruling, because it is correct legally. But let’s not kid ourselves (especially Baptists!): a big cross on public land is doing nothing to advance the work of the church or the kingdom of God.”