The U.S. Supreme Court said a 40-foot cross can continue serving as a war memorial in a busy Maryland intersection, a ruling that bolsters the government’s power to display religious symbols on public property.
The justices, voting 7-2, rejected contentions that the monument, in the Washington suburb of Bladensburg, represents an unconstitutional government endorsement of Christianity. The concrete memorial was erected almost a century ago to honor 49 local men who died in World War I.
“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,” Justice Samuel Alito wrote for the majority.
Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented, with Ginsburg saying the memorial “elevates Christianity over other faiths, and religion over nonreligion.”
The court has struggled to lay out clear rules governing religious symbols on public land, and the latest ruling only highlights the cacophony of views among the justices. Seven of the nine, all but Chief Justice John Roberts and Sotomayor, wrote an opinion in the case. In announcing the ruling from the bench, Alito quipped that the justices had been “quite prolific in our writings.”
Alito indicated that Thursday’s ruling was a narrow one that wouldn’t clear government officials to start erecting new religious symbols.
“Retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones,” he wrote. “The passage of time gives rise to a strong presumption of constitutionality.”
Kavanaugh and Gorsuch
New Justice Brett Kavanaugh, one of President Donald Trump’s two Supreme Court appointees, suggested he read the ruling as going further than that. He said the court was applying a “history and tradition test,” which he indicated didn’t depend on the age of the structure.
But Justices Stephen Breyer and Elena Kagan, two liberals who joined the majority, said the court didn’t adopt Kavanaugh’s test. Breyer wrote that “a newer memorial, erected under different circumstances, would not necessarily be permissible” under the court’s approach.
Justice Neil Gorsuch, Trump’s other appointee, said the court was creating problems for itself by having the outcome depend in part on the age of the display.
“How old must a monument, symbol, or practice be to qualify for this new presumption?” he asked in an opinion joined by Justice Clarence Thomas. “It seems 94 years is enough, but what about the Star of David monument erected in South Carolina in 2001 to commemorate victims of the Holocaust, or the cross that marines in California placed in 2004 to honor their comrades who fell during the War on Terror?”
Ginsburg, in her dissent, wrote, “Just as a Star of David is not suitable to honor Christians who died serving their country, so a cross is not suitable to honor those of other faiths who died defending their nation.”
The 12-meter cross sits on a grassy space where three major roads converge. It rests on a base that includes a weathered plaque with the men’s names and a quote from President Woodrow Wilson. The words “courage,” “valor,” “devotion” and “endurance” are engraved around the foot of the cross.
The American Legion completed the cross in 1925 and owned it for several decades before the Maryland-National Capital Park and Planning Commission took over ownership in 1961.
A federal appeals court had said the monument unconstitutionally endorsed Christianity to the exclusion of other beliefs. The ruling, had it stood, could have forced removal of the memorial or transfer to a private party. The American Legion and the park commission separately appealed to the Supreme Court. Both had the support of the Trump administration.
Justice Department spokeswoman Kelly Laco called the ruling “a win for protecting religious freedom and American historical tradition.”
Supporters of the Peace Cross, as it’s known, said the Constitution generally allows religious displays. Opponents said the government can’t show favoritism toward particular faiths.
Jonathan Greenblatt, chief executive officer of the Anti-Defamation League, which was founded in 1913 to oppose anti-Semitism, said in a statement the Maryland cross and others on public property should be relocated “to private land where they will not send a message of religious exclusion and secondary status to Jews and other non-Christians.”
The cases are American Legion v. American Humanist Association, 17-1717, and Maryland-National Capital Park and Planning Commission v. American Humanist Association, 18-18.