A Christian War Memorial in No Way Violates the Establishment Clause

Alexandra McPhee is Director of Religious Freedom Advocacy at Family Research Council. This article appeared in the National Review Online on February 15, 2019.

Next week, the U.S. Supreme Court will hear oral argument from advocates for and against the preservation of a World War I–era veterans memorial, the Peace Cross, in Bladensburg, Md. The crux of the case, American Legion v. American Humanist Association, is the question whether a two-county commission offends the establishment clause of the U.S. Constitution by maintaining the cross-shaped memorial.

Advocates of letting the memorial stand at an intersection along National Defense Highway urge that its shape should not dictate its removal because it is chiefly a monument in honor of Prince George’s County’s war dead. They also stress that the commission accepted ownership of the memorial owing to traffic-safety concerns more than 30 years after private parties constructed it. At Family Research Council, we agree with the 84 percent of Americans who, according to one survey, say that the memorial should stand. Our nation has long accommodated and even facilitated religion in the public square. We argue that an unapologetic recognition of the religious nature of public monuments such as the Peace Cross is perfectly consistent with the establishment clause.

But not everyone who recognizes the Peace Cross’s religious nature believes it should stand. In an amicus brief submitted in support of the secularist group that wants the memorial gone, several religious organizations claim that even though the Peace Cross is a 93-year-old war memorial in a park surrounded by other memorials dedicated to wars throughout America’s history, the commission’s ownership represents “government taking sides between religions.” In their view, it “singl[es] out only Christians for collective memorialization” and represents “government speech endorsing particular religious teachings.”

The argument is misguided on several levels. First, these opponents use too broad a brush in painting a picture of improper religious motive. As the family members of the soldiers named on the Peace Cross argued in their own brief, the Peace Cross “safeguard[s] the memory of their family members’ service across generations.” It honors identifiable individuals named on a plaque on the memorial. And census data show that, at the time of World War I, Prince George’s County’s population was primarily if not completely Christian. This memorial is a product of a grieving community seeking to honor 49 men from the area who served with “valor,” “endurance,” “courage,” and “devotion” in World War I, and it reflects the community at that time. It is not, as its opponents argue, a national monument honoring exclusively those of the Christian faith.

Second, the opponents ignore the commonsense reality that the memorial is, at the most basic level, a commemoration by community members who in Christian imagery found comfort, not an endorsement of specific “religious teachings.” To argue that the Peace Cross is such an endorsement not only ignores the history of this particular memorial (erected by private parties) — it would effectively demand the removal of all religious symbols from public property. If government maintenance of a monument with religious significance means government endorsement of a particular teaching or belief, every religious symbol on government property must come down.

The neutrality principle does not demand such an extreme outcome. Justice David Souter put forth a strong originalist defense of the neutrality principle but explained that government may take pains to accommodate religious beliefs “without expressing a position on the theological merit of” any given “value or of religious belief in general.” While Souter wrote in context of exempting individuals from generally applicable laws because of their religious beliefs, the principle should apply just as much to the commission’s maintenance of the Peace Cross. Souter also acknowledged that “the Establishment Clause’s concept of neutrality is not self-revealing.” So when groups argue that the government’s obligation to religious neutrality prohibits it from maintaining a memorial like the Peace Cross, they bite off more than they can chew.

A review of how the establishment of religion was understood at the time of the founding shows that the Constitution hardly demands the Peace Cross’s removal. One study on founding-era discussions of the establishment of religion indicates that “government display of religious symbols was not a particular concern discussed in the context of an establishment. When concerns about religious symbols did arise, they arose in the context of government suppressing or destroying symbols of dissenting churches.”

The fact of the matter is, the Peace Cross was a private endeavor. The organizations argue that the establishment clause requires the memorial’s removal to accommodate America’s increasing religious diversity. But they overlook that it is their proposed standard that would stifle the expression of religion in the public square — be it Judaism, Islam, Hinduism, Buddhism, Christianity, or any faith. All of America’s increasingly diverse religious communities will lose out if the Constitution is reinterpreted to prohibit any government recognition or accommodation of religion. The Peace Cross, religious implications and all, should be allowed to stand.