Alexandra McPhee is Director of Religious Freedom Advocacy at Family Research Council. This article appeared in The Washington Examiner on September 30, 2018.
Very soon, the Supreme Court could announce its decision to hear an appeal over whether the 40-foot “Peace Cross” — as it is known by locals in Bladensburg, Md. — is too tall and too Christian for a government to own and maintain in accordance with the Establishment Clause of the First Amendment.
This is the latest step in a campaign by the American Humanist Association to eradicate this memorial honoring our World War I veterans. The humanist group won that battle at the Fourth Circuit Court of Appeals when two judges decided that the cross was somehow too much for the Constitution to bear.
The specific questions before the Court include whether the memorial is unconstitutional simply because it is shaped like a cross, and whether the government’s routine upkeep and maintenance of the memorial violates the Constitution. To some, such questions may seem silly. To others, including veterans who have fought for and sacrificed much, they are insulting. Our own executive vice president, retired Lt. Gen. Jerry Boykin, for one, signed onto a brief submitted to the Court arguing that the Peace Cross should stay.
If the Court decides to take up the case, it will be at a time when public monuments with any religious connotation face First Amendment challenges, even though these monuments are often greatly important to the local community.
The Peace Cross, for instance, serves as a reminder to residents and visitors of the surrounding Bladensburg community that freedom has been bought with the lives of our loved ones. How can it be unconstitutional for the government to preserve that memory when it was the very same government that asked those loved ones to die for their country? Why would it oppress people of different beliefs to know that their government wants to remember that sacrifice?
Nearly one thousand miles away, the American Humanist Foundation has brought a very similar suit against a World War II-era cross erected in Bayview Park in Pensacola City, Fla. Unfortunately for the Bayview Park Cross, the writing (or at least judicial precedent) was on the wall before that case even began. Earlier this month, the Eleventh Circuit Court of Appeals ruled in a three-judge panel that the 77-year-old cross must come down. Though they may have believed the Constitution actually didn’t require such a ruling, the judges explained that unless the nation’s highest court, which governs the interpretation of federal constitutional law, reversed either the panel’s decision or older Eleventh Circuit precedent, they were constrained to arrive at this outcome. “Accordingly,” the judges wrote, “our hands are tied.”
Erected years ago by a civic group to celebrate Easter, the Bayview Park Cross has since taken on a significance in the community that extends well beyond its religious origins. Despite being only one of 170 monuments strewn across parks in Pensacola, Fla, it is the only one offensive enough to inspire a lawsuit. The four individuals who initiated the lawsuit said they felt “offended,” “affronted,” and “excluded” by the cross. (One of the judges deciding this case quipped that it apparently didn’t stop the plaintiffs from going on “regular bike rides,” and that one plaintiff had used the cross in “some kind of satanic ritual”).
The Eleventh Circuit ruling is notable for the overt reluctance expressed by the judges deciding the case. Two judges wrote separately and comprehensively explained why the interpretations by which they were bound were in fact misinterpretations of the Founding Fathers’ intent as expressed 231 years ago. Existing Supreme Court precedent in this area of the law is, as one judge explained, “a hot mess.”
The litigants in this case have also asked the Supreme Court for its review later this fall. For now, we will have to wait and see whether either of these cases wind up at our nation’s highest court.
In both cases, there is doubtless enough fodder for the Supreme Court to re-evaluate the jumbled state of the law surrounding the Establishment Clause. Let us hope the Court does just that.