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Supreme Court rules 7-2 that ‘Peace Cross’ can remain standing

The Supreme Court’s cross case was its top religion-related case this term.

SHARE Supreme Court rules 7-2 that ‘Peace Cross’ can remain standing

SALT LAKE CITY — A 40-foot-tall cross will remain standing in Bladensburg, Maryland, after the Supreme Court ruled 7-2 that government funding for the monument does not unlawfully privilege the Christian faith.

The so-called “Peace Cross,” a memorial to lives lost in World War I, was challenged as a violation of the Constitution’s establishment clause, which prevents the government from privileging one faith group over others.

Justices decided the cross, which was dedicated in 1925, could remain standing, arguing that its historical significance outweighed concerns about its association with Christianity. They compared it to Notre Dame in Paris, which is both a house of worship and "inextricably linked with the very idea of Paris and France."

"The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything 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 for the community to gather and honor all veterans. … For others still, it is a historical landmark," said Justice Samuel Alito, who wrote the majority opinion, released Thursday.

Nourishing a healthy, pluralistic society doesn't require banishing religious symbols from the public square, he wrote.

"The religion clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg cross on the land where it has stood for so many years is fully consistent with that aim," the ruling explained.

Although seven justices joined the majority opinion in full or in part, concurring opinions revealed tension over how the establishment clause should be applied in future cases.

Some justices said the court should overhaul its current approach to protect long-standing, faith-related displays or practices. Others said the court should continue to evaluate each challenge on a case-by-case basis and take care to determine whether the government has shown animus toward non-Christian Americans. Two justices said that simply being offended by something like the Bladensburg cross should not give someone standing to sue the government.

"Justices have some very serious disagreements about what tests should govern future cases and, indeed, whether future cases should be heard at all," said Robert Tuttle, a professor of law and religion at George Washington University.

Justices Ruth Bader Ginsburg and Sonia Sotomayor were the only justices to dissent in full, arguing that the "Peace Cross" is undeniably religious and therefore should not be maintained with public funds.

"As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content," Ginsburg wrote.

The cross case originated more than five years ago, when the American Humanist Association lodged a complaint against the Maryland-National Capital Park and Planning Commission. The commission had taken control of the Bladensburg cross — which was originally constructed and maintained by the American Legion, veterans organization — in 1961 amid upgrades to the traffic circle that surrounds it.

Since then, the commission spent around $117,000 on the monument, which the American Humanist Association described as a violation of the establishment clause. Non-Christian taxpayers should not be required to fund the upkeep of a Christian symbol, the organization argued.

The federal District Court rejected the American Humanist Association's claims, but the 4th Circuit Court of Appeals reversed its ruling. Then, the commission and American Legion appealed to the Supreme Court. Without the Supreme Court's intervention, the commission would have had to sell the Bladensburg cross or remove its arms.

Altering the cross would likely have been seen as more problematic than funding the upkeep of the Peace Cross, the majority opinion explained.

"A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion," it argued.

First Liberty Institute, a religious liberty-focused law firm that represents the American Legion in the case, celebrated the ruling, arguing that it protects more than just the Bladensburg cross.

"This is a landmark victory for religious freedom. The days of illegitimately weaponizing the establishment clause and attacking religious symbols in public are over," said Kelly Shackelford, president, CEO and chief counsel for First Liberty, said in a statement.

That may be an overstatement, according to Fred Gedicks, a law professor at Brigham Young University. The ruling likely won't protect newly constructed monuments that appear to convey a religious message.

"I think new religious symbols are likely to remain vulnerable," he said.

Some of the cross' supporters had hoped for a ruling that was broader in scope, as the Deseret News reported earlier this year. They wanted the Supreme Court to formally kill the "Lemon test," which asks judges to consider the motivation behind why a faith-related display was constructed and whether it has a secular purpose.

"It's a test that tends to be more restrictive of associations between the government and religion," Gedicks said.

Four justices did outline problems with the Lemon test and one advocated for it to be left behind entirely. But the majority opinion will not prevent the Lemon test from continuing to play a role in establishment clause jurisdiction.

"Retaining established, religious expressive monuments, symbols and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality," the ruling explained.

The ruling still upset many civil rights activists, including some people of faith.

"The Bladensburg cross is neither truly representative of the diverse personal faith, philosophy or conscience of the local service members for whom it was built to honor, nor do we see this ruling as honoring the powerful meaning of the Latin cross for devoted Christians," wrote Rabbi Jack Moline, president of Interfaith Alliance, in a statement.

Although justices sought to limit the ruling's application to historical monuments, it can be read like confirmation of Christianity's special status in American culture, Tuttle said.

"What some people are likely to take away from this ruling is a reaffirmation of the idea of a Christian America," he said.

Roy Speckhardt, the executive director of the American Humanist Association, said his organization won't give up on ensuring the government does not privilege the Christian faith over others.

"Our legislative efforts will be redoubled as (we) work to strengthen the wall of separation between church and state," he wrote in a statement.

In a concurring opinion, Justice Brett Kavanaugh expressed sympathy for those who are dissatisfied with the outcome, explaining that the case posed challenging questions.

"It would demean both believers and nonbelievers to say that the cross is not religious, or not all that religious. A case like this is difficult because it represents a clash of genuine and important interests," he wrote.