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Supreme Court of the United States

Supreme Court Makes It Clear that this Cross-Shaped War Memorial Does Not Establish a Religion

June 24, 2019

The U.S. Supreme Court’s decision on the Bladensburg Peace Cross last week is a welcome corrective on the often misused (and frequently misunderstood) words: “the separation of church and state.”

To understand the Supreme Court’s ruling, you must first understand the history behind the Bladensburg Cross.

Erected in 1925, the cross has stood these many years as a tribute to the 49 local soldiers who gave their lives in World War I. The cross is the site for many ceremonies, honoring military heroes on Memorial Day, Veteran’s Day, and Independence Day. It was erected as a place of quiet reverence and respect, where citizens remember the cost of our freedom and give thanks to those who paid the ultimate price.

The surrounding area also has other memorials honoring veterans, in what is known locally as “Veterans Memorial Park.” These include a September 11 garden; a World War II Honor Scroll; a Pearl Harbor Memorial; a Korea-Vietnam memorial; and a memorial commemorating the War of 1812.

The cross at Bladensburg would have been a familiar sight to those around the nation at the time of its creation. A generation of Americans would have recognized the cross from the many photos of rows of crosses, marking the resting places of Americans buried in European cemeteries. A beloved poem of the time, John McCrae’s “In Flanders Fields” poignantly captured those scenes: “In Flanders fields the poppies blow – Between the crosses, row on row.” The crosses were originally temporary markers for bodies. After the war ended, the War Department intended to remove the crosses and replace them with marble slabs, but the public outcry was so great that the Department changed its plans. Instead, the wooden crosses and Stars of David were replaced with marble versions of those symbols, which stand in those cemeteries to this day.

This background was prominent in the Supreme Court’s ruling in favor of the cross, reversing a federal court of appeals ruling that the cross had to be removed from the site.

How did the memorial cross symbol, once so universally treasured, end up in such peril?

The route to this case was a course of years and court ruling on what is referred to as “The Establishment Clause” of the First Amendment to the U.S. Constitution. The clause states, “Congress shall make no law respecting an establishment of religion…”

Over time, this prohibition against a “national religion” (as, for example, the Church of England) became associated with the phrase “separation of church and state,” largely by taking that phrase outside its historical context.

This association created great mischief in a Supreme Court decision in 1971 called Lemon v. Kurtzman. The so-called “Lemon test,” created a three-part inquiry to determine whether the Establishment Clause has been violated. The test shifts focus off the government imposition on the people. Rather it focuses on the perception, or misperception, of those offended by government action. In the years since its creation, the Lemon Test has been roundly criticized by many scholars, judges, and even the Supreme Court itself on occasion.

This test, became a convenient judicial tool for hostility against religion. So thorough was this transformation that even a beloved war memorial was declared by a lower court to be a government attempt to establish the Christian faith – all because a few individuals claimed to be “offended” by the mere sight of the memorial’s shape.

The very idea that the “Christian” faith could be “established” under these circumstances borders on absurd; Christianity, like other religions, is divided into a multitude of traditions and beliefs with substantial disagreement on many theological issues. A memorial to honor fallen heroes could scarcely be what the Framers had in mind by “establishment” when passing the First Amendment, no matter its shape or design.

With this in mind, the Supreme Court, in a 7-2 vote, held that the long standing memorial cross in did not establish a religion, and therefore did not violate the First Amendment. Happily, the Court squarely addressed the “Lemon test” and declared it often unhelpful and obsolete.

If you will pardon the pun, the Court squeezed a Lemon and gave us lemonade.

The lower court ruled that the memorial should be moved, desecrated by cutting the arms off the cross, or destroyed. But in Justice Alito’s lead opinion, the Supreme Court noted that destruction of the cross would demonstrate hostility, and not neutrality: “For many … 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.”

This case is likely not the end of Establishment Clause litigation over religious symbols, like memorial crosses and Ten Commandments statues. But fortunately, the Court has signaled that respect, tolerance, and common sense carry the day in these cases, and not the Lemon Test.

That’s as it should be, particularly when honoring the heroes who paid the ultimate price to protect our freedoms.

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