War Over Peace Cross Reaches U.S. Supreme Court

March 1, 2019

A longstanding dispute over the nature of a war memorial has made its way before the United States Supreme Court.  The case originated in 2014, when Fred Edwords happened to drove past the 40 foot tall concrete Latin cross in Bladensburg, Maryland.  The Bladensburg Cross, often referred to as the Peace Cross, was built by private citizens as a memorial to Americans killed in World War One.  While the memorial was originally built on private land, due to increased traffic in the area surrounding it, the local government acquired the land and assumed control over the memorial.

Edwords, a long-time member of the American Humanist Association, is an advocate for the separation of church and state and found the government’s ownership and maintenance of the cross to be a violation of the First Amendment’s Establishment Clause.  Edwords and two other plaintiffs from the AHA commenced an action under 42 U.S.C. 1983 over the memorial within the District Court of Maryland.

When courts are confronted with Establishment Clause cases, there are two cases that are primarily relied upon: Lemon v. Kurtzman and Van Orden v. Perry.  The test from Lemon, despite being widely criticized, continues to be the predominant standard and was the main basis for the District Court and Fourth Circuit when analyzing this case.  The Lemon test prohibits any government action that (1) lacks a secular purpose, (2) has the primary effect of “endorsing” religion, or (3) excessively entangles the government in religion.  If any one of these elements is violated, then the government action violates the Establishment Clause.  Van Orden created a different analysis, the legal judgment test, which takes into consideration the purpose of the Establishment Clause as well as the context of the supposed violation.

The District Court primarily relied upon the Lemon test in its analysis, and concluded that the government had a legitimate secular purpose in maintaining the memorial and that there was no violation of the Establishment Clause.  The Court acknowledged that a Latin cross is undeniably a religious symbol, but that other courts have recognized these displays to honor fallen soldiers are a legitimate secular purpose and do not always promote a religious message.  Private ownership of the busy highway interchange could be chaotic, and it is the government’s secular responsibility to maintain the land as it would any other highway median.  The Court distinguished this case from ones cited by the plaintiffs due to the memorial serving predominantly as a war memorial for its entire history.  The context of the memorial within Veterans Memorial Park would not lead a reasonable observer to conclude this to be an endorsement of religion.

The plaintiffs appealed the decision, and the Fourth Circuit Court of Appeals reversed the decision.  The Appellate Court concluded that the memorial has the primary effect of endorsing religion and excessively entangles the government in religion.  This conclusion was reached again through application of the Lemon test, although the Appellate Court gave due consideration to Van Orden.  While it agreed the first prong of the test was satisfied, it was on the second prong that it failed.

The Appellate Court spent a significant time analyzing the context and meaning of the memorial being a Latin cross.  It concluded that the Latin cross is the preeminent symbol of Christianity, and while it may serve as a symbol of death and memorialization, it holds these values because of its affiliation with the crucifixion of Jesus Christ.  The religious elements of the memorial overwhelm the secular aspects – its immense size and prominence set it apart from the other memorials in Veterans Memorial Park, and it is not easy to closely examine the memorial to find its secular elements due to it being in a high-traffic area.

The U.S. Supreme Court granted the petition to hear this case, with oral arguments set to be heard on Wednesday, February 27th, 2019.  Observers of the Court are curious on the path the court will take when reaching its judgment, given the new composition of the Court.  A decision is expected to be issued in June of 2019.

Photo Credit: REUTERS/Lawrence Hurley

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