Alexandra McPhee is Director of Religious Freedom Advocacy at Family Research Council. This article appeared in The Washington Examiner on March 5, 2019.
If your loved one died in service to their country, how would you honor their memory? In Bladensburg, Md., a committee that included Gold Star mothers and veterans wanted to remember their fallen of World War I with a monument in the shape of a cross.
That monument, also known as the Peace Cross, has stood at its current location since 1925. It honors 49 men who sacrificed themselves in service to their country. Over time, the community has dedicated more monuments in that area to veterans of other wars.
On February 27, the Supreme Court heard oral arguments about whether the monument to the community’s loss and servicemembers’ sacrifice can stay. A secularist legal group has sued to remove the Peace Cross, arguing that a religious symbol cannot constitutionally appear on public property.
The question is rooted in whether the Constitution’s Establishment Clause — commonly though inaccurately referred to as the separation of church and state — demands the memorial’s removal. Court watchers are optimistic about a decision in favor of the Peace Cross. The real question, they say, is whether the justices will finally reassess the constitutionality of religious displays on public property. Unfortunately, since the Supreme Court made the display of religious symbols on public property a constitutional question since at least the 1980s, it has been less than clear about whether a given display passes muster.
This case presents a valuable opportunity for the Court to issue a decision that restores clarity about the constitutionality of religious displays, a legal issue that suffers from too many approaches and too little guidance. Hopefully, the Supreme Court’s decision will be consistent with its protection of the “traditional practices that recognize the role religion plays in our society.” As the attorney arguing for the memorial powerfully observed, “If you ban sectarian symbols, then you are necessarily banning all religious symbols, which evinces hostility and is in stark tension with the Free Exercise and Free Speech Clause.”
If a judge’s questions reflect his or her thoughts about the case, there may be hope for a decision that transfers greater decision-making responsibility about religious displays from the federal courts to entities more accountable to the desires of the local community. Justice Brett Kavanaugh asked whether, based on “historical practice,” the Establishment Clause “can be thought of as setting a floor” for what the government can or cannot do in its interactions with religion. He said the Constitution “tilts toward liberty in its structure” and provides “lots of avenues” to protect liberty, which in this case could include the Maryland Legislature, the Maryland Constitution, or even the Maryland courts.
Invoking concerns expressed about the many religious symbols displayed in Arlington National Cemetery, the secularist legal group noted that there was a statute that created “a non-discriminatory, religiously neutral opportunity for people to place their own monuments.” Perhaps as if to say that this law proved his point, Justice Samuel Alito observed, “Yeah, that's the way this sort of thing is being handled today in a pluralistic society in which ordinary people get along pretty well.” That is, it is possible to make room for pluralism outside the courts and without being “at each other’s throats about religious divisions.”
Top Establishment Clause scholar Professor Michael McConnell said, “The Court's efforts to draw fine lines where no objective lines can be drawn is the cause of, not the solution to, much divisiveness over religious symbols.”
With this in mind, it leads one to wonder why groups continue to push these matters into the federal courts. So often, local government officials are forced to decide whether to avoid litigation challenging religiously inspired displays before the matter is brought to them by citizens as a policy concern. And can it really be said that there will be less divisiveness if the Supreme Court orders the Peace Cross’ removal?
This country has for years endured the effect of Supreme Court decisions constitutionalizing many sensitive social issues. Less Supreme Court involvement in these matters should be the goal, especially in today’s society, which gives everyone an opportunity to voice their diverse and varying opinions. And in a community that suffered great loss during the Great War, a government should be able to honor that memory, not erase it.