The U.S. Supreme Court ruled Thursday in a 7-2 vote that a World War I memorial in the shape of a cross can remain on the land on which it has stood in Maryland for nearly a century.
But the six concurring opinions showed a difference in reasoning among the justices.
Two far-left justices, Ruth Bader Ginsburg and Sonia Sotomayor, would have thrown the cross out.
The case, American Legion v. American Humanist Association, concerned the Bladensburg Peace Cross, which honors 49 soldiers who gave their lives during World War I.
The nearly 40-foot granite and cement structure was built in 1925 at Maryland Route 450 and U.S. Route 1 in Bladensburg, Maryland. It was funded by local families, businesses and the American Legion.
The state later acquired the property and has been paying for maintenance.
The shape was selected for its likeness to cross-shaped grave markers for soldiers buried in American cemeteries overseas at the time.
A plate at the base lists the names of the 49 soldiers, and there are markers recognizing the American Legion.
The dispute began in 2014 when members of the American Humanist Association filed a lawsuit claiming the memorial discriminates against soldiers who were not Christian. The legal action later was joined by the the Council on American-Islamic Relations.
“This is a landmark victory for religious freedom. The days of illegitimately weaponizing the Establishment Clause and attacking religious symbols in public are over,” said Kelly Shackelford, president and CEO of First Liberty, which represented the American Legion.
“Our Founders would have been appalled at this attempt to make the government hostile to our religious heritage, history, and symbols. The attempted perversion of our Constitution is now over, and every American now has more freedom than they have had in decades, with a government no longer hostile to people or expressions of faith,” he said.
Michael Carvin, lead counsel for the American Legion, said: “We are grateful for this historic victory for the First Amendment. This decision simply affirms the historical understanding of the First Amendment that allows government to acknowledge the value and importance of religion.”
“The American Legion is proud to have defended the Bladensburg WWI Veterans Memorial,” said Brett Reistad, national American Legion commander. “Since our founding, the Legion has been committed to defending the memorials of our fallen comrades because we know the price of freedom. To my fellow veterans: mission accomplished!”
Mat Staver, founder of Liberty Counsel, said the Supreme Court “made a common sense ruling that the ‘Peace Cross’ war memorial does not violate the First Amendment Establishment Clause.”
“Today’s ruling is an encouraging example of the court returning to the Constitution and abandoning these unworkable manmade tests,” he said.
But Staver said he’s disappointed the court chose not to overturn the three-part Lemon test established in the Lemon v. Kurtzman case to assess whether a law violates the Establishment Clause.
“We must return to the Constitution and abandon these unworkable manmade tests,” he said.
Staver said the Lemon test “has proven to be unworkable and has led to inconsistent and contradictory decisions on the constitutionality of 10 Commandment monuments and cross monuments like the ‘Peace Cross.'”
Liberty Counsel previously argued that the Lemon test “should be replaced with an objective test that would yield clear and consistent results. The new test would analyze displays based upon history, whether the symbol is ubiquitous and whether the display is coercive, i.e., is actively trying to proselytize or push a particular religious belief.”
David Cortman, vice president of U.S. litigation for Alliance Defending Freedom, said: “We commend the court for ensuring that one group’s offended feelings over the memorial won’t diminish the sacrifices of our veterans or dismantle their memory. 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.”
WND reported earlier that Fourth U.S. Circuit Court of Appeals Judge Paul Niemeyer, who dissented from his court’s condemnation of the cross, had warned that if that cross is destroyed, hundreds of crosses at war memorials across the nation are at risk.
The judge said the ruling not only “violates [precedent], it also needlessly puts at risk hundreds of monuments with similar symbols standing on public grounds across the country, such as those in nearby Arlington National Cemetery.”
“Because this ruling has such far-reaching and unnecessary consequences, it should be reheard by our court en banc, and I dissent from the vote not to do so.”
The cross now is owned and run by the Maryland-National Capital Park and Planning Commission. The commission was created by the Maryland General Assembly in 1927, but its board is appointed by Prince George’s and Montgomery counties.
The main opinion in the case explained: “The plaintiff claiming an unconstitutional establishment of religion must demonstrate that he was actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding. Respondents have not demonstrated that maintaining a religious display on public property shares any of the historical characteristics of an establishment of religion.”
It said the Bladensburg Cross “is constitutional even though the cross has religious significance.”
“Religious displays or speech need not be limited to those considered nonsectarian. Insisting otherwise is inconsistent with this nation’s history and traditions … and would force the courts ‘to act as supervisors and censors of religious speech.'”
Two justices agreed with the result but would have ruled that the plaintiffs had no standing to bring a lawsuit, so it should have been dismissed out of hand. The justices saw no constitutional basis for the complaint that members of the humanist group were “offended” when they drove by and saw the cross.
There were six concurring opinions that disagreed on some points of the reasoning.
The majority opinion said: “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. 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.
“For all these reasons, the cross does not offend the Constitution.”
Ginsburg’s dissent suggested the property ownership could be transferred into private hands.