The Supreme Court long has struggled with the question of when religious symbols on public property violate the 1st Amendment’s ban on an “establishment of religion.” But in agreeing to consider the constitutionality of a giant memorial cross at a busy highway intersection in Maryland, the justices could be signaling that they are ready to broadly endorse such displays. That would be a mistake.
The so-called Peace Cross on a traffic island in Bladensburg, Md., near Washington, D.C., was erected after World War I as a memorial to the war dead. It was built with money from the community and the support of the American Legion, but in 1961, it was taken over by a public park and planning commission. Since then it has been maintained with public funds.
The cross is reminiscent of two memorial crosses in California that became embroiled in litigation: one in the Mojave National Preserve and another atop San Diego's Mt. Soledad. Lawsuits over those monuments were settled when the land on which they stood was acquired by private parties. The Peace Cross, by contrast, is on public property.
Ruling in a challenge brought by the American Humanist Assn., the U.S. 4th Circuit Court of Appeals held that the Peace Cross violates the 1st Amendment because it “has the primary effect of endorsing religion and excessively entangles the government in religion.”
Writing for the majority, Judge Stephanie Dawn Thacker wrote: “The Latin cross is the core symbol of Christianity. And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Md., and maintained with thousands of dollars in government funds.” The cross, she wrote, “says to any reasonable observer that the Commission either places Christianity above other faiths, views being American and Christian as one in the same, or both.”
In dissent, Chief Judge Roger L. Gregory argued that the cross was constitutional because a reasonable observer would regard it not as an endorsement of Christianity but rather as a war memorial. Gregory also disputed the majority’s claim that the cross involved an unconstitutional “entanglement” of church and state. He said there was no evidence the parks commission consulted with churches to determine who would have access to the memorial.
Who’s right? The Supreme Court has sent such mixed signals about the display of religious symbols on public property that the same decisions were cited by both the majority and the dissent on the appeals court. And even when justices have agreed on the result, they have offered different explanations.
In 2005, when the court upheld the display of the Ten Commandments on the grounds of the Texas state Capitol, Chief Justice William Rehnquist wrote an opinion for four members of the court emphasizing that “having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.”
But the fifth member of the majority, Justice Stephen Breyer, emphasized that the Ten Commandments were part of a display that also communicated a secular message. Noting that the Texas display had stood for 40 years without being challenged in court, he also worried that a court ruling dismantling it might “create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”
One might say the same of the Peace Cross. But, unlike the Ten Commandments, which are revered by Jews and Christians (and by some nonbelievers who see them as containing universal ethical precepts), the cross is a distinctively Christian symbol.
In 2010, in a case involving the Mojave cross, Justice Anthony M. Kennedy wrote that a Latin cross “is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this nation and its people.”
Kennedy has retired, but supporters of separation of church and state worry that his successor, Justice Brett M. Kavanaugh, might also be receptive to the argument that a cross is not primarily a Christian symbol.