- - Sunday, June 23, 2019

ANALYSIS/OPINION:

Forty-nine soldiers from “the Great War,” as World War I was once known, can now “requiescat in pace.” The people of Prince George’s County, Maryland, can rest in peace, too. The U.S. Supreme Court liberated the Peace Cross in Bladensburg this week from the anger of vandals who wanted to evict the 40-foot-tall cross from its place of honor on a traffic roundabout, where it has commemorated the “valor, endurance, courage and devotion” of the heroic dead for nearly a century.

The 7-to-2 ruling of the U.S. Supreme Court laid to rest the malice-driven claim by atheists and secularists that the cross, erected in 1925 on what is now public land, had become an “unconstitutional” intruder after nine decades. The justices overturned an October 2017 lower-court ruling that held the monument, maintained with public funds, “has the primary effect of endorsing religion and excessively entangles the government in religion,” presumably in violation of the Establishment Clause of the First Amendment, which prohibits the government favoring one religious faith over another.

The cross, at a prominent intersection in Bladensburg, was built by the American Legion, and is now maintained by the Maryland-National Capital Park and Planning Commission, a state agency, which acquired it from the American Legion in 1961.

“The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent,” Justice Samuel A. Alito Jr. wrote for the court’s majority, which was joined by the court’s four conservatives and two liberals.

Justice Alito wrote that context — specifically, history and tradition — should be taken into account when assessing the constitutionality of displays on public property that include religious imagery. “For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”



The 4th U.S. Circuit Court of Appeals in Richmond, which entered the decision overturned by the Supreme Court, had agreed with the plaintiff American Humanist Association, which suggested that one option could be to amputate the arms of the cross, in Venus de Milo fashion, to remove its religious imagery and “form a nonreligious slab or obelisk.” The two most liberal members of the high court, Justices Ruth Bader Ginsburg and Sonia Sotomayor, would have upheld that lower-court decision.

In dissent, Justice Ginsburg wrote that allowing the cross to remain on public land would erode the constitutional principle that “demands government neutrality” with respect to religion and “places Christianity above other faiths.” Making a Latin cross a war memorial “does not make the cross secular. Quite the contrary, the image of the cross makes the war memorial sectarian.” But the Supreme Court majority disagreed, siding instead with the dissenting 4th Circuit judge, Roger L. Gregory, who observed that the First Amendment “does not require the government ‘to purge from the public sphere’ any reference to religion.”

Indeed, the decision was a victory for common sense, constitutional originalism and our country’s history, and a blow to the Supreme Court’s convoluted 1971 order that in resolving church-state conflicts courts should examine whether a government action advances or endorses religion. This has resulted in confusion and several odd lower-court decisions in which judges seemed to confuse the streets surrounding the Peace Cross with the sawdust trail that leads to revival-meeting conversions. The Peace Cross has rarely, if ever, been used for religious observances.

“The days of illegitimately weaponizing the Establishment Clause and attacking religious symbols in public are over,” exulted Kelly Shackelford, president of First Liberty, which helped defend the cross on behalf of the American Legion. A win for the militant atheists and secularists would have set a dangerous precedent that could have threatened other war memorials with even the hint of religious faith, which many do. Even the row upon row of thousands of crosses that adorn the graves at Arlington National Cemetery and other national cemeteries might eventually be threatened. Washington is full of lawyers, all looking for clients.

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