Supreme Court: Cross Can Stand On Public Land In Separation Of Church And State Case

Jun 20, 2019
Originally published on June 20, 2019 5:05 pm

Updated at 9:04 p.m. ET

The U.S. Supreme Court ruled Thursday that a 40-foot World War I memorial cross can stay on public land at a Maryland intersection.

The cross "has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of a hostility toward religion that has no place in our Establishment Clause traditions," wrote Justice Samuel Alito, who penned the majority opinion for the court.

Alito added that contrary to the challengers' intimation, "there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. The Religion Clause of the Constitution aims to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim."

The decision was 7 to 2, but it had multiple parts and not all of the seven agreed on every aspect. The decision reverses a lower-court ruling that said the memorial is unconstitutional, because it is on public land and maintained at taxpayer expense. The high court's ruling is a major victory for religious groups and the American Legion, which warned that if this cross had to be moved, so, too, would other crosses that serve as war memorials.

In his opinion for the court, Alito said that the cross had essentially become secular. He invoked the history of World War I memorials. He pointed to the rows and rows of crosses that marked the graves of U.S. soldiers across Europe and said that established in people's minds the idea of crosses as war memorials back then.

Justice Ruth Bader Ginsburg, in dissent, disagreed with Alito's history. She noted that it's clear what the purpose and meaning of the cross was from the start — it was religious. She argued Americans knew what it meant then and know what it means now.

"Decades ago," Ginsburg wrote, "this Court recognized that the Establishment Clause of the First Amendment to the Constitution demands governmental neutrality among religious faiths, and between religion and non-religion. ... Numerous times since, the Court has reaffirmed the Constitution's commitment to neutrality. Today the Court erodes that neutrality commitment, diminishing precedent designed to preserve individual liberty and civic harmony in favor of a 'presumption of constitutionality for longstanding monuments, symbols, and practices.' "

"The Latin cross," she said, "is the foremost symbol of the Christian faith, embodying the 'central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life.' ... Precisely because the cross symbolizes these sectarian beliefs, it is a common marker for the graves of Christian soldiers. For the same reason, using the cross as a war memorial does not transform it into a secular symbol, as the Courts of Appeals have uniformly recognized."

Joining Alito's opinion were the court's four other conservative justices, though two of them — Justices Clarence Thomas and Neil Gorsuch — only signed on to the outcome. Thomas restated his view that the Constitution's clause banning the establishment of religion does not apply to the states, and Gorsuch said he would have dismissed the challenge to the cross because, in his view, the objectors didn't have legal standing to sue.

The decision could have sweeping implications in terms of symbols, like crosses and the Ten Commandments that have long been in place. Those that are already there are unlikely to be removed, but putting up new crosses or other religious symbols on public property very likely would not stand under Thursday's ruling.

Possible landmines for future cases

Reaction to the court's ruling varied. Though most experts saw the decision as narrow, some also saw landmines in the footnotes that could lead to far broader decisions in cases involving religious practices in the public sphere and religious involvement with the government.

Michael McConnell, director of the Constitutional Law Center at Stanford Law School, saw the case as mainly about symbols. "What it's saying is that symbols that have been around for a long time will be upheld," but "no one should think that necessarily applies to new symbols."

David Strauss, co-editor of the Supreme Court Review at the University of Chicago agreed, but said that there "are intimations" in the court's opinions that "a majority is willing to go quite a bit further in allowing the government to signal its support for religion in various ways."

He said that there are suggestions in the decision that if a practice was acceptable at the time the Constitution was written, those practices would be acceptable today.

"If that is what the court means," Strauss said, "that would be a big change, because the country is a lot more religiously diverse now than it was then" and "turning back the clock that way... would be a big deal."

University of Pennsylvania law professor Marci Hamilton, who, like McConnell and Strauss, has written extensively about the the religious clauses of the Constitution, pointed to a full-page footnote in the Alito opinion categorizing the different kinds of religion cases that the Supreme Court has been faced with over the last 70 years.

The footnote, she suggested, is loaded with landmines for the future expansion of religion in the public sphere, from prayer in public schools to "church involvement in governmental decision-making."

The implication, she said, is "that maybe it's OK to have churches making governmental decisions."

University of Virginia law professor Douglas Laycock, though, was relieved by what he viewed as a limited opinion. He filed a brief opposing the Maryland memorial on behalf of Christian groups and the Jewish War Veterans, but he said that "From a true state separation perspective, this could have been much worse."

The Trump administration, he noted, had argued that "'the cross is a universal symbol of sacrifice,' which is just nonsense. And the court didn't go there. So there's good news here."

How the cross got there

The concrete cross at the center of the court's decision is located in the middle of a busy median strip and directly across the street from a large pawnshop in Bladensburg, Md.

It was erected nearly 100 years ago when bereaved mothers in Bladensburg decided to build a World War I memorial to honor their fallen sons. When they ran out of money, the American Legion took over the project. But by the 1930s, a local parks commission had taken over the memorial and the responsibility for its maintenance.

Today, the cross is more grungy than grand. The concrete is crumbling; a canvas tarp covers the top, and without the $100,000 that the parks commission has budgeted for repair, the monument looks like it may not be long for this world.

The American Humanist Association challenged the placement of the cross, contending that "there is no meaning to the Latin cross, other than Christianity."

A federal appeals court agreed, declaring that its placement violated the Constitution's ban on establishment of religion. The appeals court ruled that the cross should be moved to a private location and funded without taxpayer money.

Now, the Supreme Court has reversed that ruling.

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RACHEL MARTIN, HOST:

The U.S. Supreme Court ruled this morning that a 40-foot cross in the state of Maryland on public land can stay. Here's the backstory. The cross was built in 1925 and has served as a World War I memorial for almost a hundred years. Bereaved mothers in Bladensburg, Md., decided to build the memorial to honor their fallen sons. When they ran out of money, the American Legion took over the project.

But by the 1930s, a local parks commission had taken over the war memorial and the responsibility for its maintenance, but that meant taxpayer money was going to that maintenance. A lower court ruled the cross was unconstitutional. Today, though, the Supreme Court reversed that ruling. NPR legal affairs correspondent Nina Totenberg is at the Supreme Court and joins us now.

Good morning, Nina.

NINA TOTENBERG, BYLINE: Good morning, Rachel.

MARTIN: Explain what you know of the court's decision.

TOTENBERG: Well, the American Humanist Association wanted the cross moved to private land and funded privately, and the court said it didn't have to do that. Justice Samuel Alito wrote for a seven-justice majority in this case. And he began by summarizing what happened in World War II, how soldiers buried there, they put a cross on them. And they also put Stars of David. But the image that parents had in their mind and spouses had in their mind were these rows and rows of crosses. And he said that, therefore, it is not only a Christian symbol. He said the fact that the cross is undoubtedly a Christian symbol should not blind one to everything else that the Bladensburg cross has come to represent - a symbolic resting place for ancestors who never returned home, a place for the community to gather and honor all veterans and their sacrifices for this nation and a historical landmark. For many, he said, destroying or defacing the cross or moving it would not be a neutral act and would not further the ideals of respect and tolerance embodied in the First Amendment guaranteed of protection of religion.

So that was his decision for the court - speaking for the court majority, but not everybody agreed with everything that he wrote.

MARTIN: Right. And they made that clear because I understand there was an exceptional amount of writing associated with this case.

TOTENBERG: Yeah. There were six - I think, six separate concurring opinions. Justices Thomas and Gorsuch didn't agree with almost anything that Alito said. They agreed with the bottom line, but Thomas said he doesn't think the First Amendment protection for religion - for religious neutrality applies to states. And Gorsuch said he thought the whole case should've been dismissed because the American Humanist Association didn't have standing to challenge this.

But the others did - and they have - I think there's - I haven't counted up, but I think there's probably more than a hundred pages of writing in this. But essentially, I think they agree - everybody agreed with the bottom line; that it's too late to go back and undo these kinds of very special kinds of monuments that are - that have a religious symbol.

MARTIN: You mentioned the dissenters, Justice Ginsburg and Sotomayor. Did they have anything notable to say here?

TOTENBERG: Well, Ginsburg actually gave her dissent from the bench, which is a mark that you really care about this, that you think this is important. And she said that the court today erodes the neutrality principle that we've had in the past, diminishing precedent that serves to preserve that neutrality. The Latin cross is the foremost symbol of the Christian faith, she said, embodying the central theological claim of Christianity, that the son of God died on the cross, that he rose from the dead and that his death and resurrection offer the possibility of eternal life. It's not emblematic of any other faith. And by maintaining this cross on a public highway, the state places Christianity above other faiths and conveys a message of exclusion to non-Christians - nearly 30% of the U.S. population - telling them they are outsiders, not full members of the political community.

MARTIN: Lastly, Nina, I mean, what does this ruling mean practically speaking? Can someone just put up a cross on public land now?

TOTENBERG: I think not. I think this is an opinion that the majority of the court agreed with. And not just five members of the court, but seven members of the Court ultimately said this - upheld this. And it's based on history and tradition and seeing some sort of a difference between the Latin cross as a Christian symbol versus the Latin cross as a symbol of the dead.

MARTIN: NPR legal affairs correspondent Nina Totenberg.

Thank you so much.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.