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High court upholds cross on public land

EDITOR’S NOTE: This story has been updated since it was posted earlier Thursday (June 20).

WASHINGTON (BP) — The U.S. Supreme Court ruled Thursday (June 20) a 40-foot cross on public land that serves as a memorial to World War I soldiers does not defy the First Amendment’s ban on government establishment of religion.

In a 7-2 decision, the justices reversed the Fourth Circuit Court of Appeals’ opinion that a Latin cross in Bladensburg, Md., violates the Establishment Clause of the First Amendment under a nearly 50-year-old test by promoting Christianity. The American Humanist Association (AHA) challenged the constitutionality of the cross, which was completed in 1925 to memorialize 49 soldiers from Prince George’s County, Md.

In its opinion, the high court did not go as far as some supporters of the memorial cross hoped it would. The justices declined to overturn what is known as the Lemon test, but they also refused to rely on it in their opinion. That three-prong test presented in the court’s 1971 Lemon v. Kurtzman opinion says a law must have a secular purpose, not primarily promote or restrict religion and “not foster an excessive entanglement with religion” to avoid a violation of the Establishment Clause.

Many religious freedom advocates have criticized the Lemon test, saying it calls for a purge of religion from the public square that the U.S. Constitution does not require.

Nevertheless, defenders of the Bladensburg cross’ constitutionality applauded the high court’s ruling.

Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC), called it “a good, common sense decision from the court to uphold religious freedom and a nearly century-old memorial.”

“I am thankful the justices saw through this attempt to amend the Establishment Clause to mean what [James] Madison did not write,” Moore said in a written statement. “As we argued in our brief to the court, maintaining this memorial cross is hardly an official establishment in law of Christianity. We hope this opinion will lead to clearer, consistent rulings on matters of faith in the public square.”

The ERLC joined with other organizations in a friend-of-the-court brief in support of the cross’ constitutionality.

Kelly Shackelford — president of First Liberty Institute, which represented the American Legion in its defense of the cross — described the opinion as “a landmark victory for religious freedom. The days of illegitimately weaponizing the Establishment Clause and attacking religious symbols in public are over.”

David Cortmann, senior counsel for Alliance Defending Freedom, commended the court. “A passive monument like the Bladensburg Cross, which celebrates those who died to defend our Constitution and acknowledges our nation’s religious heritage, simply does not amount to an establishment of religion,” he said in a written statement.

Meanwhile, AHA Executive Director Roy Speckhardt said in a written release the organization’s legislative efforts “will be redoubled as the American Humanist Association works to strengthen the wall of separation between church and state, brick by brick.”

The Bladensburg cross decision is the latest in a long line in which the high court has sought to interpret a much-debated clause in the First Amendment that says, “Congress shall make no law respecting an establishment of religion.” The cases have included such considerations as Ten Commandments displays on public property, school prayers and government prayers.

In its opinion, the court said the memorial’s age and its various meanings to observers provide support for its constitutionality.

“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,” Associate Justice Samuel Alito wrote for the majority. “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.

“[W]hen time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community for which it has taken on particular meaning,” Alito wrote. “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.”

Joining Alito in the majority were the other four court members who are typically considered conservatives: Chief Justice John Roberts and Associate Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh.

The case, however, split the normally liberal wing of the court. Associate Justices Stephen Breyer and Elena Kagan joined the majority, while Ruth Bader Ginsburg and Sonia Sotomayor dissented.

The Lemon test received criticism from some of the justices, most notably Thomas. He “would take the logical next step” declined by the majority and “overrule the Lemon test in all contexts,” Thomas wrote.

Lemon “has no basis in the original meaning of the Constitution” and “continues to cause enormous confusion” in the states and lower courts, he said. “It is our job to say what the law is, and because the Lemon test is not good law, we ought to say so.”

Since the Lemon test’s introduction in 1971, justices have offered a variety of tests in Establishment Clause cases. In a 2013 decision regarding legislative prayers, the court suggested Establishment Clause challenges must be viewed by reference to historical practices and understandings.

In her dissent, Ginsburg said the maintenance of the cross on a public highway “elevates Christianity over other faiths, and religion over nonreligion. As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content.”

The Maryland-National Capital Park and Planning Commission, an agency of the state of Maryland, owns the Bladensburg cross, which is located with monuments to veterans of other wars in Veterans Memorial Park.