June 20, 2019
They were farmers, surgeons, a professor, even the president of the Marine Corps baseball team. One was a man in his 50s, already wounded, who had "no business being on the front lines." They were 49 men with one thing in common: they never came home. Today, most Marylanders couldn't tell you their stories. That's because 100 years after the war ended, we're too busy fighting for what those heroes died to give us: freedom.
It's been 94 years since a grieving mom pulled the flag away from the base of a 40-foot cross, revealing the names of almost 50 soldiers -- mostly boys -- who gave their lives in World War 1. For almost a century, the cross has stood against the sky, one mile from the D.C. line, a fixture against an ever-changing landscape. It's survived a second world war, Korea, the Cuban missile crisis, Vietnam, the Persian Gulf, 9/11, and now -- thanks to the Supreme Court -- its biggest battle: radical extremists, bent on tearing the memorial down because it was in the shape of a cross.
Alvergia Guyton is one of the few people left with a personal connection to the cross. "It's been there all my life," she said. Her great uncle had been one of those brave teenagers, marching off to join the Army in an all-African American unit. She's shocked anyone would even think of challenging it. "It's history," she insisted. This morning, seven justices of America's highest court agreed, leaving John Seaburn's sacrifice -- and the sacrifices of Prince George's County's sons intact.
By a 7-2 vote, the justices were clear, "The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent. For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place... to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark." At its core, they insist, it's "part of the community." In fact, the justices argued, "its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of a hostility toward religion that has no place in our Establishment Clause traditions."
When the American Humanist Association (AHA) argued that the cross was somehow an official endorsement of religion, Justice Samuel Alito couldn't have disagreed more. The whole point of the "religious clauses of the Constitution" are to "foster a society in which people of all beliefs can live together harmoniously...[T]he presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim."
Would the activists at the AHA say that California is trying to "convey a religious message" by keeping city names like Los Angeles and San Diego," the justices asked? Of course not. "Much the same is true about monuments to soldiers who sacrificed their lives for this country more than a century ago." If the court struck down this cross, there'd be no end to the absurdity. What about the Red Cross, the justices asked? How could it keep its name? Or the military's medals -- like the Navy Cross and Distinguished Service Cross?
In a concurring opinion, Justice Neil Gorsuch talked about how tired he is of this "I-take-offense" threshold for suing. "In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an 'offended viewer' may 'avert his eyes'...or pursue a political solution." In other words, Gorsuch insisted, if secularists are this upset about the memorial, take it up with the legislature! After all, Justice Kavanaugh added, "This court is not the only guardian of individual rights in America."
As grateful as we are for the victory, there are many -- FRC included -- who were hoping the justices would take the opportunity to overhaul the mess our courts have made of the Establishment Clause. Protecting war memorials is important, but these issues will continue to bubble up if the Supreme Court doesn't scrap the "Lemon test" that's driven the attacks on other faith-based monuments and displays. Justice Thomas was certainly more than ready to.
"Nearly half a century after Lemon," Thomas writes, "and, the truth is, no one has any idea about the answers to these questions. As the plurality documents, our 'doctrine [is] in such chaos' that lower courts have been 'free to reach almost any result in almost any case.' Scores of judges have pleaded with us to retire Lemon, scholars of all stripes have criticized the doctrine, and a majority of this Court has long done the same. Today, not a single Member of the Court even tries to defend Lemon against these criticisms -- and they don't because they can't... It is our job to say what the law is, and because the Lemon test is not good law, we ought to say so."
As we explained in FRC's amicus brief, religion has a natural, proper, and even essential role in our public life and the life of our military. We're grateful for the result the Supreme Court delivered today -- but we'll continue to push the court to correct the confusion that's been used to scrub religious messages, signs, and symbols from public life.
Travis Weber, FRC’s Vice President for Policy spoke with Kelly Shackelford, President and Chief Counsel of First Liberty Institute at the U.S. Supreme Court following today’s decision. First Liberty represented The American Legion before the Court in this case.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.