Supremes OK Cross Memorial

7-2 ruling shoots down atheist attempt to tear down WWI memorial

Bladensburg, Md., memorial cross / Getty Images
June 20, 2019

The Supreme Court gave its blessing to a cross that a Maryland community erected in remembrance of U.S. servicemembers.

On Thursday, the High Court ruled 7-2 that the state of Maryland and the American Legion can leave up the Bladensburg Cross, a Prince George’s County monument commemorating the 49 locals who died in the First World War. Associate Justice Samuel Alito, writing for the majority, rejected arguments from the American Humanist Alliance that the cross constitutes an endorsement of religion. He said it reflected the community's remembrance of fallen soldiers, as do the plain white crosses and Stars of David that marked their graves overseas.

"The Bladensburg Cross does not violate the Establishment Clause. The image of the simple wooden cross that originally marked the graves of American soldiers killed in World War I became a symbol of their sacrifice," Alito wrote. "Destroying or defacing the Cross would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment."

Associate Justice Clarence Thomas, joined by Associate Justice Neil Gorsuch, said the suit should have been dismissed earlier given the lack of standing of the association. They called on lower courts to dismiss "offended observer standing," which allows atheist groups to file suits based upon their feelings of aggrievement at having to see religious symbols. That test was established in the 1971 Lemon v. Kurtzman case, an 8-1 ruling that overturned a Pennsylvania law allowing teachers at religious schools to be reimbursed for textbooks.

"Little excuse will remain for the anomaly of offended observer standing, and the gaping hole it tore in standing doctrine in the courts of appeals should now begin to close," Thomas wrote. "Abandoning offended observer standing will mean only a return to the usual demands of Article III, requiring a real controversy with real impact on real persons to make a federal case out of it."

The five Republican appointees were joined by two of the Court's liberal justices, Steven Breyer and Elena Kagan. Democratic appointees Ruth Bader Ginsburg and Sonia Sotomayor dissented from the ruling, arguing that tearing down the cross is the best way of ensuring neutrality and protecting "civic harmony."

"Using the cross as a war memorial does not transform it into a secular symbol," Ginsburg wrote in the dissent. "By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion … the State’s choice to display the cross on public buildings or spaces conveys a message of exclusion."

Justice Breyer, joined by Kagan, defended the cross against his fellow liberal justices, pointing out that it had stood for nearly a century without controversy before the AHA stepped in to have it torn down. He argued that there are undeniable secular values of patriotism, service, and peace within the monument, and there was no historical record about malicious intent to discriminate against non-Christians in its construction. He went on to agree with the majority that to accede to the atheist group's demands would demonstrate hostility toward religion by the State.

"No evidence suggests that they sought to disparage or exclude any religious group; the secular values inscribed on the Cross and its place among other memorials strengthen its message of patriotism and commemoration; and, finally, the Cross has stood on the same land for 94 years, generating no controversy in the community until this lawsuit was filed," Breyer wrote. "Ordering its removal or alteration at this late date would signal 'a hostility toward religion that has no place in our Establishment Clause traditions.'"

The 7-2 ruling garnered praise from religious liberty advocates, who said the Court has embraced a modest approach that weighs the history of the country and its ancestors. Luke Goodrich, vice president and senior counsel at the pro-bono Becket Fund for Religious Liberty said atheist groups have been given too much judicial deference to sue "over harmless religious symbols."

"The Supreme Court rightly recognized that religious symbols are an important part of our nation's history and culture," he said in a statement. "We look forward to the coming gap in cable-news programming, as atheist organizations that made bank by suing over harmless religious symbols find a new line of work and learn to look the other way."

AHA did not respond to request for comment, but did take to Twitter calling on the Supreme Court to "#HonorThemAll" with highlights from Ginsburg's dissent.

Other religious liberty proponents said the lawsuit was not about honoring the war dead, but disrupting communal history. Terry Schilling, executive director of the American Principles Project, called the ruling "constitutionally sound and morally responsible." He said the suit demonstrated overreach from atheist groups. He does not expect attacks on religious liberty or symbols to abate despite the ruling, pointing to attacks on conscience protections.

"The left has been caught again pushing a radical agenda aimed at eliminating all forms of religious displays in public," said Schilling. "The American people are starting to see just how radical liberals have grown over the past few years, and sadly, it shows no signs of moderating."

Andrea Picciotti-Bayer, a legal adviser for The Catholic Association, said the decision would make room for pluralism by acknowledging the faith of the citizenry, rather than trying to purge it from history.

"In saving the historic Bladensburg Peace Cross from the American Humanists' bulldozers, the Supreme Court has brought common sense and clarity to this important First Amendment issue: The Constitution does not require eliminating the great symbols of America's religious pluralism from the public square," Picciotti-Bayer said in a statement.

Thursday's decision was the second major judicial defeat for atheist groups in June. On June 13, an atheist group dropped its suit challenging tax exemptions for clergy housing after the Seventh Circuit Court of Appeals rejected it on the merits. That lawsuit could have potentially cost religious organizations $1 billion.