- - Tuesday, February 26, 2019

Should a 93-year-old World War I monument in the shape of a cross be leveled to the ground? Or just have its horizontal arms sawed off so it is no longer a cross and, thus, no longer offensive to the American Humanist Association?

Maryland’s Alvergia Guyton awaits an answer. She’s the niece of John Henry Seaburn Jr., an African-American Army private killed in World War I.

The U.S. Supreme Court will hear oral argument this month in the American Legion’s bid to save a century-old commemorative monument from the intolerance that comes from radical secularism. The Legion might even save the court from its confused Establishment Clause jurisprudence. The case (American Legion v. American Humanist Association) is one of this term’s most important cases.

Ms. Guyton joined family members of some of the other 48 soldiers named on the memorial in an amicus brief to the Supreme Court. Without the Peace Cross, she fears future generations will forget her Uncle John’s sacrifice and history of courageous service by the county’s African-American soldiers.

Known by locals as the “Peace Cross,” the Bladensburg, Maryland memorial traces its origins to 1919. A committee, including mothers of 10 local servicemen who died in the war, resolved to erect a memorial to honor their fallen. For the monument’s design, the committee chose a cross — a well-recognized symbol of service and sacrifice in “the Great War.” Many of the bereaved had no gravesite to visit. The remains of more than half of Americans who died in World War I were buried in Europe. Their loved ones visit community memorials like the Peace Cross instead.

The local American Legion post volunteered to bring the project to completion, raising the funds necessary to honor their fallen brothers. Veterans returning home from World War I chartered The American Legion in 1919. The legion, it’s important to remember, is an ecumenical organization. It holds no religious test for membership.

Black and white, Bladensburg’s grieving families and veterans gathered in July 1925 for the memorial’s dedication. A bronze plaque at its base declares:

“Dedicated to the heroes of prince george’s county, maryland who lost their lives in the great war for the liberty of the world.”

In the 1930s, Maryland’s Roads Commission acquired the property from the local American Legion and continues to provide for its modest upkeep and repair. This is all too much for the American Humanist Association. The Humanists, you may not know, crusade to rid the Pledge of Allegiance of the words “under God.” In 2012, the group also complained that the Peace Cross’ presence on public land — a traffic circle — somehow violates the Establishment Clause. The Humanists group won on appeal.

Two of the Fourth Circuit panel’s three judges issued a series of sweeping pronouncements. Crosses possess an “inherent religious meaning” that easily overwhelms the government’s secular purposes. Its history and presence on public land had the effect of “endorsing” Christianity. Maryland “excessively entangled” itself in religion by spending money for the memorial’s upkeep. In so asserting, these two judges neatly tailored their conclusion that the Peace Cross is unconstitutional to Establishment Clause jurisprudence known as the “Lemon test.”

The Supreme Court’s 1970 Lemon decision declared unconstitutional Pennsylvania and Rhode Island statutes that provided state aid to predominately parochial schools. The court established the three-pronged “Lemon test” for evaluating such claims: “First, the statute must have a secular purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.”

Scholars like Stanford Law’s Michael McConnell and Cardozo Law’s Marci A. Hamilton have observed that the test has been much criticized in the years since Lemon, and the Supreme Court often decides Establishment Clause cases without reference to it. Yet the justices, they note, “have not overruled the Lemon test, meaning the lower courts remain obliged to use it.” The late Antonin Scalia was well-known for his disdain of Lemon. “Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried,” Justice Scalia wrote in a 1993 concurrence, “Lemon stalks our Establishment Clause jurisprudence again.”

Well, Lemon is back — at least until the Supreme Court overrules it once and for all.

The American Legion lawyers, for their part, advocate a clear legal standard for evaluating Establishment Clause claims. The Establishment Clause is not violated, they argue, if the government does not coerce belief in, observance of, or financial support for religion. This standard is far more workable than the Lemon test and more in line with the Founders’ views on government-established religion.

Moreover, a “tangible coercion” test will protect us from grotesqueries like the felling of Bladensburg’s Peace Cross. Alvergia Guyton can honor her uncle, John Henry Seaburn Jr. — and the 48 other Marylanders — can rest in well-earned peace.

• Andrea Picciotti-Bayer is legal adviser for The Catholic Association Foundation.

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