Legislative Update

Lift high the (partially secular) cross!

By Tom Venzor

Coming off the United States Conference of Catholic Bishops’ Religious Freedom Week (June 22-29) is a good time as any to provide a religious freedom development update. The development is a United States Supreme Court decision (American Legion v. American Humanist Association) upholding the constitutionality of a cross monument on public property.

In honor of the fallen soldiers who did not return from World War I, the community of Prince George’s County in Maryland established plans in 1918 for a plain Latin cross memorial. The American Legion helped complete the project in 1925 and erected the 32-foot tall cross which bears the names of 49 soldiers. At its dedication, both a Baptist pastor and Catholic priest were present to offer prayers of invocation and benediction. Over the years, the cross also served as the venue for many memorial services, patriotic gatherings, and community events.

In 1961, the cross memorial was acquired by a government entity, which transformed the property into public ground. Since then, the cross has been maintained using public funds.

In 2014, the American Humanist Association, among others, filed a law suit, claiming that the cross memorial’s presence on public land violates the First Amendment Establishment Clause. A district court concluded the cross was constitutional. The 4th Circuit Court of Appeals reversed that decision. In a rather complicated 7-2 decision, the U.S. Supreme Court reversed the 4th Circuit, ruling that the cross memorial’s presence on public land is not a violation of the First Amendment.

Seven Supreme Court Justices determined the memorial cross does not violate the First Amendment’s Establishment Clause, but only five of those Justices agreed on the main holding (or rule) the case establishes.

In the majority opinion authored by Justice Samuel Alito, he stated that although the cross originally had a clear religious significance and a distinctly Christian connotation, the cross had a (non-religious) secular meaning as a memorial.

Justice Alito also noted that the cross over time took on new meaning, a meaning that was not exclusively Christian but was respectful of and encompassed the entire community.

Justice Alito further expressed concerns over the 4th Circuit’s suggestions for remedying the constitutional problem they saw with the cross. The 4th Circuit proposed lopping off the arms of the cross to make it secular and neutral. Justice Alito retorted: “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.” In other words, government action that modifies or expunges religious displays may be imbued and viewed with hostility toward with religion—itself a violation of the Establishment Clause.

As religious liberty scholars Mark Movsesian and Marc DeGirolami have observed, this case stands for, at least, the idea that old historical religious monuments and displays are presumptively constitutional. As they also criticize, if the case only stands for this “antiquarian” rule, the case makes little logical sense. In other words, if the rule of this case is “if it’s old enough, it’s constitutional” the case is problematic.

For example, what if a city council were to establish the same type of religious/secular monument today to honor the lives of those who do not return from overseas combat in, say, Afghanistan? The memorial cross in Maryland is arguably constitutional, but the city council memorial cross is possibly too new and religious to be constitutional—an obviously odd and inconsistent outcome.

In response to this shortcoming of the case, Justice Neil Gorsuch who agreed with the case’s outcome proposed a different “test” for evaluating these types of displays and monuments. He argues for a “history and traditions” test. This test would ask the question whether a monument or display (old or new) is constitutional as “consistent with our nation’s traditions.”

In the end, there will be much scholarly ink spilled over this decision as it abounds with ambiguity and nuance—and may create more problems for lower courts than it provides a solution. Nevertheless, the case also marks an important religious freedom victory and allows us, in the meanwhile, to lift high our (partially secular) cross in the public forum!

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