Does a memorial to fallen soldiers breach the church-state wall?

DRIVERS on Maryland Route 450 or US Route 1 might be forgiven for wondering if Christianity is the official religion of Bladensburg. At a busy intersection in the town (population 9,148) stands a chunky 40-foot concrete cross. It is flanked by an American flag and is decorated with a small star. The words “valour”, “devotion” and “courage” are inscribed on the sides of the cross, but they are not easily visible from the road. There is no church in sight.

A few years ago, the American Humanist Association (AHA) and three residents of Prince George’s County, where Bladensburg is located, argued that the cross violated the Establishment Clause of the First Amendment. In their lawsuit against the Maryland-National Capital Park and Planning Commission—the state entity charged with maintaining the structure—the plaintiffs, all non-Christians, complained that the cross offended them and violated the separation of church and state at the heart of America’s constitution. Last October, a three-judge panel of the Fourth Circuit Court of Appeals agreed with the challengers by a vote of 2-1. And on March 1st, the court refused, by a narrow vote of 8-6, to rehear the matter en banc (as a full court). The cross, the judges decided, must be altered so that it was no longer a cross, or razed.

That decision does not sit well with supporters of the so-called Peace Cross, a monument that has stood for 90 years as a memorial to soldiers who died in the first world war. In 1925, when it was dedicated, the memorial was erected on private land using private funds. Due to safety concerns about its placement near traffic, in 1961 the cross and its land were transferred to the Commission, which has spent $217,000 to maintain it. Kelly Shackelford of the First Liberty Institute, a group fighting the lawsuit, attributes the Fourth Circuit ruling to a “brooding hostility toward religion”. If the Peace Cross cannot stand, he warned, America will need to embark on a project of “massive bulldozing and sandblasting of veterans memorials across the country”.

In her ruling in October, Judge Stephanie Thacker wrote that the cross, as “the core symbol of Christianity”, has the “primary effect of endorsing religion” and, given public expenditures, “excessively entangles the government in religion”. She explained that the monument’s long history does not change that. To the contrary, “perhaps the longer a violation persists, the greater the affront to those offended”. Judge Thacker’s reasoning is rooted in Lemon v Kurtzman, a fraught 1971 Supreme Court precedent, and a thought experiment called the “endorsement test” that was first deployed by Justice Sandra Day O’Connor in a 1984 case involving holiday displays on public grounds. In Lynch v Donnelly, Justice O’Connor argued that a reasonable observer wouldn’t gaze upon a nativity scene abutting a Christmas tree and a “Seasons Greetings” banner and conclude that a city had endorsed Christianity. There is a “legitimate secular purpose”, she wrote, involving the “celebration of public holidays”, and the nativity scene was drained of religious significance by the other items in its midst. Using similar logic, in his controlling opinion in a 2005 case, Justice Stephen Breyer upheld a Ten Commandments display on the grounds of the Texas capitol because it was long-standing, accompanied by dozens of other monuments and carried “not simply a religious message, but a secular message as well”. (That same day, though, Justice Breyer was also the key vote to remove copies of the Ten Commandments from two Kentucky courthouses.)  

The main point of contention between Judge Thacker and the dissenter, Chief Judge Roger Gregory concerns the knowledge one presumes the “reasonable observer” to possess. For Judge Thacker, an average citizen gazing at the Peace Cross would understand it as a symbol of Christianity and, if acquainted with the monument’s history, would regard it as, at best, “semi-secular”. The “sectarian elements” of the monument, she wrote, “easily overwhelm the secular ones”. At four stories tall, the cross “is by far the most prominent monument in the area” and is “conspicuously displayed at a busy intersection”. But for Chief Judge Gregory, size matters little, and a reasonable observer would see the cross as “a war memorial built to celebrate the 49 Prince George’s County residents who gave their lives in battle”, rather than as a “divisive message promoting Christianity over any other religion or nonreligion”.

Offence is ultimately in the eye of the offended. “Even a reasonable observer without a history degree”, says Greg Lipper, who once policed the church-state line as a litigator for the watchdog Americans United, “would know that people of all faiths and no faith have fought and died for their country”. But an oddity plagues American Humanist Association v Maryland-National Capital Park and Planning Commission. The plaintiffs, especially after years of litigation, are well acquainted with the structural and historical details of Peace Cross; they should know better than to think the cross is an overt attempt by the state of Maryland to make Christianity its official religion or favour Christian soldiers. On the other hand, very few of the thousands of drivers passing through the area will have a clue that the gargantuan cross commemorates fallen soldiers at all, or that it has been adorning Bladensburg byways for nearly a century. For them, the cross may well appear to poke a hole in America’s church-state wall. Yet the judges on both sides of this dispute focus their analysis on imaginary people—purportedly objective reasonable observers—who neither live in the town nor pass by the monument. 

In a dissent on March 1st, Judge Harvie Wilkinson turned to yet another group of people of dubious relevance to the constitutional question: the fallen soldiers. “The dead cannot speak for themselves”, he wrote. “We should take care not to traverse too casually the line that separates us from our ancestors and that will soon enough separate us from our descendants…to roil needlessly the dead with the controversies of the living does not pay their deeds or their time respect”. It’s quite likely the controversy will stir one more round of litigation: fans of the Peace Cross say they intend to bring their case to the Supreme Court. 

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