- The Washington Times - Thursday, June 20, 2019

Bladensburg’s beloved Peace Cross can remain, the Supreme Court ruled Thursday, saying the memorial to soldiers killed in World War I has been consecrated by nearly 100 years of public devotion — and that tearing it down would show unconstitutional “hostility” to religion.

The 40-foot Latin cross, which stands on public park land at a major intersection in Prince George’s County outside Washington, had become a test of religious freedom, with those on both sides of the church-state divide wondering what the justices would do.

In a 7-2 ruling, the court blessed the cross, saying it has earned “special significance” over the years as a war memorial and expression of a community’s grief for its lost sons.

But the justices were unable to come to any consensus about how to approach hundreds of other religion-themed memorials across the country, leaving them to be fought over one by one.

Justice Samuel A. Alito, writing the key opinion in American Legion v. American Humanist Association, said it’s clear the Maryland cross passes muster and removing it would be an affront to the community and to the First Amendment.

“The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim,” he wrote.

The cross was erected by the American Legion, and the design was chosen to mirror the crosses that stood on the graves of the troops who died during the Great War. The names of 49 soldiers are engraved at the base of the cross.

In 1961, the Maryland-National Capital Park and Planning Commission acquired the land where the cross stands, creating the church-state clash that the cross’ opponents raised with the Supreme Court.

Justice Stephen G. Breyer, who agreed with the main ruling, said the case would have been different if there had been evidence that the American Legion erected the cross in an attempt to disparage or disrespect people in faiths other than the Christians whom the cross represents. But he said there was no evidence of that.

“I see no reason to order this cross torn down simply because other crosses would raise constitutional concerns,” he wrote.

It remains to be seen what the effect of the ruling has on hundreds of other cross-style memorials on public lands across the country.

Justice Breyer said each one must be taken on its own facts and that Thursday’s opinion, while setting out one framework, does not guarantee they are all permissible.

The ruling was the latest blow to the “Lemon test,” the Supreme Court’s 1971 framework for deciding religion-state entanglements that required the courts to look at whether a government action advanced or endorsed religion.

“While the Lemon Court ambitiously attempted to find a grand unified theory of the Establishment Clause, in later cases, we have taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance,” Justice Alito wrote.

He suggested that there should be “a presumption of constitutionality for long-standing monuments” on public grounds.

Only two other justices joined him in that part of the opinion.

Justice Neil M. Gorsuch wrote his own opinion disagreeing.

“It’s hard not to wonder: How old must a monument, symbol, or practice be to qualify for this new presumption? It seems 94 years is enough, but what about the Star of David monument erected in South Carolina in 2001 to commemorate victims of the Holocaust, or the cross that marines in California placed in 2004 to honor their comrades who fell during the War on Terror?” he wrote.

Justice Gorsuch said the American Humanist Association, which challenged the cross, should have been denied standing to sue in the first place. Justice Clarence Thomas agreed with that but wrote a separate opinion saying it’s time the court ditch the Lemon test altogether.

Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, said the court got it wrong.

In their dissent, they said the Peace Cross is impossible to view as anything other than the chief symbol of Christianity and leaving it on public land “elevates” that religion above all others.

“As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content,” Justice Ginsburg wrote.

She said the First Amendment’s freedom of religion and its prohibition on “respecting an establishment of religion,” when combined, amount to a demand for neutrality toward religion.

“Today the court erodes that neutrality commitment, diminishing precedent designed to preserve individual liberty and civic harmony in favor of a “presumption of constitutionality for longstanding monuments, symbols and practices.”

She suggested moving the cross to another location to solve the religious entanglement.

The ruling overturns a decision by the 4th U.S. Circuit Court of Appeals, which rejected the cross in a 2-1 decision.

Religious liberty advocates called the high court’s decision a landmark.

“The days of illegitimately weaponizing the Establishment Clause and attacking religious symbols in public are over,” said Kelly Shackelford, president of First Liberty, which helped defend the cross on behalf of the American Legion.

The park commission that owns the land said it was “gratified” to have prevailed, saying the cross is an important reminder of honor, bravery and sacrifice.

“This is a big win for our community and this nation,” said Elizabeth M. Hewlett, chairwoman of the commission and the Prince George’s County Planning Board.

The American Humanist Association, which lost the case, took solace in the court’s limited ruling, saying it feared the justices would overturn the Lemon test and pave the way for even broader religious displays by government.

“In the face of today’s decision, we must all pursue new avenues to bolster the First Amendment,” said Roy Speckhardt, the group’s executive director.

Americans United for Separation of Church and State, another group that battles public religious displays, called the decision “misguided,” saying it gives the government permission to play favorites when it comes to religion.

“Just because something is a tradition doesn’t make it right,” said Rachel Laser, the group’s president.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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