Supreme Court to rule on 40-foot cross


WASH­ING­TON — The Supreme Court agreed Nov. 2 to de­cide whether a 40-foot cross on state prop­erty in sub­ur­ban Mary­land vi­o­lates the First Amend­ment’s ban on gov­ern­ment estab­lish­ment of re­li­gion.

The case will give the court an op­por­tu­nity to clar­ify its fa­mously con­fused jurispru­dence on gov­ern­ment en­tan­gle­ment with re­li­gion. It will also al­low the jus­tices to con­tinue a dis­cus­sion about the mean­ing of crosses used in war memo­ri­als.

The cross at is­sue sits at a busy in­ter­sec­tion in Bladens­burg, Md., and com­mem­o­rates 49 sol­diers from Prince Ge­orge’s County who died in World War I. It was built in 1925 us­ing con­tri­bu­tions from lo­cal fam­i­lies and the Amer­i­can Le­gion.

The state took over the mon­u­ment and the land un­der it in 1961. Since then, the state has spent more than $117,000 to main­tain and re­pair the me­mo­rial.

Sev­eral area res­i­dents and the Amer­i­can Hu­man­ist As­so­ci­a­tion sued to re­move the cross in 2014, say­ing they were of­fended by what they said was its en­dorse­ment of Chris­tian­ity.

Last year, a di­vided three-judge panel of the 4th U.S. Cir­cuit Court of Ap­peals, in Rich­mond, Va., ruled that the cross sent an un­con­sti­tu­tional mes­sage of gov­ern­ment ap­proval of a par­tic­u­lar re­li­gion, breach­ing the wall be­tween church and state. The full 4th Cir­cuit de­clined to re­hear the case by an 8-6 vote.

In urg­ing the Supreme Court to hear the case, the Amer­i­can Le­gion and other sup­port­ers of the cross said the logic of the 4th Cir­cuit’s de­ci­sion could im­peril hun­dreds of war memo­ri­als that use crosses to honor the fallen, in­clud­ing the 24-foot Cana­dian Cross of Sac­ri­fice and the 13-foot Ar­gonne Cross, both in Ar­ling­ton Na­tional Ceme­tery.

“No other court,” their pe­ti­tion seek­ing re­view said, “has gone so far as to hold that a long-stand­ing, his­tor­i­cal war me­mo­rial that was built to be a war me­mo­rial and has only ever been a war me­mo­rial was un-

con­sti­tu­tional merely be­cause its pri­vate builders chose to use a cross to honor their fallen loved ones.”

A sep­a­rate pe­ti­tion from state of­fi­cials, re­fer­ring to the mon­u­ment as the Peace Cross, said the ap­peals court had com­mit­ted a dis­turb­ing er­ror.

“The Peace Cross has stood as a place of solemn com­mem­o­ra­tion and a source of civic unity for nearly a cen­tury,” the pe­ti­tion said. “By com­pelling its re­moval, de­struc­tion or dis­mem­ber­ment, the panel’s de­ci­sion will ne­ces­si­tate an act of shock­ing dis­re­spect for the brave souls of Prince Ge­orge’s County who died fight­ing for their coun­try in World War I.”

In a brief urg­ing the jus­tices to deny re­view, the chal­lengers said the me­mo­rial honors only Chris­tian vet­er­ans, not all of whom wel­come the use of a cross in this con­text.

“The Fourth Cir­cuit’s de­ci­sion,” the brief said, “not only ad­vances re­li­gious lib­erty and equal­ity for non-Chris­tians, but also ad­vances re­li­gious free­dom for Chris­tians, as many Chris­tians be­lieve the cross’s sacred sta­tus is den­i­grated when the gov­ern­ment co-opts it as a sym­bol of war.”

In the Supreme Court’s last en­counter with a war me­mo­rial in the form of a cross, the jus­tices ex­pressed vary­ing

views about the mean­ing of that sym­bol in a frac­tured de­ci­sion that re­solved very lit­tle.

“A Latin cross is not merely a reaf­fir­ma­tion of Chris­tian be­liefs,” Jus­tice An­thony Kennedy wrote in a plu­ral­ity opin­ion in 2010 that was joined by Chief Jus­tice John Roberts Jr. and Jus­tice Sa­muel Al­ito Jr. “It evokes thou­sands of small crosses in for­eign fields mark­ing the graves of Amer­i­cans who fell in bat­tles, bat­tles whose tragedies would

be com­pounded if the fallen are for­got­ten.”

Jus­tice John Paul Stevens rejected that view. “The cross is not a uni­ver­sal sym­bol of sac­ri­fice,” he wrote in a dis­sent joined by Jus­tices Ruth Bader Gins­burg and So­nia So­tomayor. “It is the sym­bol of one par­tic­u­lar sac­ri­fice, and that sac­ri­fice car­ries deeply sig­nif­i­cant mean­ing for those who ad­here to the Chris­tian faith.”

When the case was ar­gued

in 2009, Jus­tice An­tonin Scalia had a sharp ex­change with a lawyer for the Amer­i­can Civil Lib­er­ties Union who said that many Jewish war vet­er­ans would not wish to be hon­ored by “the pre­dom­i­nant sym­bol of Chris­tian­ity,” one that “sig­ni­fies that Je­sus is the son of God and died to re­deem mankind for our sins.”

Scalia grew an­gry. “I don’t think you can leap from that to the con­clu­sion that the only war dead that that cross honors are the Chris­tian war dead,” he said. “I think that’s an out­ra­geous con­clu­sion.”

Scalia died in 2016, Stevens re­tired in 2010 and Kennedy stepped down in July. The new cases are Amer­i­can Le­gion v. Amer­i­can Hu­man­ist Or­ga­ni­za­tion, No. 17-1717, and Mary­land-Na­tional Cap­i­tal Park and Plan­ning Com­mis­sion v. Amer­i­can Hu­man­ist As­so­ci­a­tion, No. 18-18.

The Bal­ti­more Sun via AP/ALGERINA PERNA

In this 2014 file photo, the World War I me­mo­rial cross is pic­tured in Bladens­burg, Md. The Supreme Court has agreed to con­sider whether a nearly 100-year-old, cross-shaped war me­mo­rial on a Mary­land high­way me­dian vi­o­lates the Constitution’s re­quired separation of church and state.

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