SCOTUS: 1925 Bladensburg ‘Peace Cross’ can stay on public land
Alito Majority Opinon: “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 U.S. Supreme Court has reversed the 4th Circuit Court of Appeals, and has ruled that the 1925 ‘Peace Cross’ Memorial erected to remember World War I dead can stay on public land. The Opinion is here.
Here is an explainer about the case from The Federalist Society:
The Marjority Opinion, written by Justice Alito, is complicated by multi-parts joined in by various Justices. This from the Syllabus (which is not part of the official decision) setting forth the breakdown:
ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, II–C, III, and IV, in which ROBERTS, C. J., and BREYER, KAGAN, and KAVANAUGH, JJ., joined, and an opinion with respect to Parts II–A and II–D, in which ROBERTS, C. J., and BREYER and KAVANAUGH, JJ., joined. BREYER, J., filed a concurring opinion, in which KAGAN, J., joined. KAVANAUGH, J., filed a concurring opinion. KAGAN, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J.,joined.
The bottom line is that the Peace Cross stays.
Here are the introductory paragraphs to the Alito Majority Opinion:
Since 1925, the Bladensburg Peace Cross (Cross) has stood as a tribute to 49 area soldiers who gave their lives in the First World War. Eighty-nine years after the dedication of the Cross, respondents filed this lawsuit, claiming that they are offended by the light of the memorial on public land and that its presence there and the expenditure of public funds to maintain it violate the Establishment Clause of the First Amendment. To remedy this violation, they asked a federal court to order the relocation or demolition of the Cross or at least the removal of its arms. The Court of Appeals for the Fourth Circuit agreed that the memorial is unconstitutional and remanded for a determination of the proper remedy. We now reverse.
Although the cross has long been a preeminent Christian symbol, its use in the Bladensburg memorial has a special significance. fter the First World War, the picture of row after row of plain white crosses marking the overseas graves of soldiers who had lost their lives in that horrible conflict was emblazoned on the minds of Americans at home, and the adoption of the cross as the Bladensburg memorial must be viewed in that historical context. For nearly a century, the Bladensburg Cross has expressed the community’s grief at the loss of the young men who perished, its thanks for their sacrifice, and its dedication to the ideals for which they fought. It has become a prominent community landmark, and 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.” Van Orden v. Perry, 545 U. S. 677, 704 (2005) (BREYER, J., concurring in judgment). And contrary to respondents’ intimations, there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. 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.
MORE TO FOLLOW
My inbox is filling with declarations that this is a tremendous victory for religious freedom, but I’m not sure that’s the case. Were the monument not a war memorial or more recently erected, the outcome may have been different.
More from the Alito opinion:
The cross came into widespread use as a symbol of Christianity by the fourth century,1 and it retains that meaning today. But there are many contexts in which the symbol has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely
secular….The image used in the Bladensburg memorial—a plain Latin cross6—also took on new meaning after World War I. “During and immediately after the war, the army marked soldiers’ graves with temporary wooden crosses or Stars of David”—a departure from the prior practice of marking graves in American military cemeteries with uniform rectangular slabs…. This national debate and its outcome confirmed the cross’s widespread resonance as a symbol of sacrifice in the war.
* * *
The existence of multiple purposes is not exclusive to longstanding monuments, symbols, or practices, but this phenomenon is more likely to occur in such cases. Even if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment. As our society becomes more and more religiously diverse, a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage….
With sufficient time, religiously expressive monuments, symbols, and practices can become embedded features of a community’s landscape and identity. The community may come to value them without necessarily embracing their religious roots. The recent tragic fire at Notre Dame in Paris provides a striking example. Although the French Republic rigorously enforces a secular public square,19 the cathedral remains a symbol of national importance to the religious and nonreligious alike. Notre Dame is fundamentally a place of worship and retains great religious importance, but its meaning has broadened….
… when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community for which it has taken on particular meaning. 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….
These four considerations show that retaining established, religiously 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.
Here’s the Alito conclusion, which again supports a narrow reading of the case as relates to religious freedom:
Applying these principles, we conclude that the Bladensburg Cross does not violate the Establishment Clause.
As we have explained, the Bladensburg Cross carries special significance in commemorating World War I. Due in large part to the image of the simple wooden crosses that originally marked the graves of American soldiers killed in the war, the cross became a symbol of their sacrifice, and the design of the Bladensburg Cross must be understood in light of that background. That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials.
Not only did the Bladensburg Cross begin with this meaning, but with the passage of time, it has acquired historical importance….
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 for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment. For all these reasons, the Cross does not offend the Constitution.
The Breyer/Kagan concurrence made the point that a new memorial might not pass the test:
Nor do I understand the Court’s opinion today to adopt a “history and tradition test” that would permit any newly constructed religious memorial on public land…A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.
Justice Thomas’s solo concurrence “in the judgement” is sharp, as usual. He agrees with the result, but would have gotten to that result much more directly:
The Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” U. S. Const., Amdt. 1. The text and history of this Clause suggest that it should not be incorporated against the States. Even if the Clause expresses an individual right enforceable against the States, it is limited by its text to “law[s]” enacted by a legislature, so it is unclear whether the Bladensburg Cross would implicate any incorporated right. And even if it did, this religious display does not involve the type of actual legal coercion that was a hallmark of historical establishments of religion. Therefore, the Cross is clearly constitutional.
* * *
As to the long-discredited test set forth in Lemon v. Kurtzman, 403 U. S. 602, 612–613 (1971), and reiterated in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 592–594 (1989), the plurality rightly rejects its relevance to claims, like this one, involving “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.” Ante, at 15–16, and n. 16. I agree with that aspect of its opinion. I would take the logical next step and overrule the Lemon test in all contexts….
It is our job to say what the law is, and because the Lemon test is not good law, we ought to say so.
Regrettably, I cannot join the Court’s opinion because it does not adequately clarify the appropriate standard for Establishment Clause cases. Therefore, I concur only in the judgment.
BUT WAIT, THERE’S MORE!
Justice Gorsuch, joined by Justice Thomas, has a separate concurrence in the judgment only, rejecting the notion of “offended observer” standing to sue, and the majority’s focus on the age of the monument:
The American Humanist Association wants a federal court to order the destruction of a 94 year-old war memorial because its members are offended. Today, the Court explains that the plaintiffs are not entitled to demand the destruction of longstanding monuments, and I find much of its opinion compelling. In my judgment, however, it follows from the Court’s analysis that suits like this one should be dismissed for lack of standing. Accordingly, while I concur in the judgment to reverse and remand the court of appeals’ decision, I would do so with additional instructions to dismiss the case….
This “offended observer” theory of standing has no basis in law. Federal courts may decide only those cases and controversies that the Constitution and Congress have authorized them to hear….
Offended observer standing cannot be squared with this Court’s longstanding teachings about the limits of Article III. Not even today’s dissent seriously attempts to defend it. So at this point you might wonder: How did the lower courts in this case indulge the plaintiffs’ “offended observer” theory of standing? And why have other lower courts done similarly in other cases? The truth is, the fault lies here. Lower courts invented offended observer standing for Establishment Clause cases in the 1970s in response to this Court’s decision in Lemon v. Kurtzman, 403 U. S. 602 (1971)….
The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago….
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,” Erznoznik v. Jacksonville, 422 U. S. 205, 212 (1975), or pursue a political solution. Today’s decision represents a welcome step toward restoring this Court’s recognition of these truths, and I respectfully concur in the judgment.
Last and least, the Ginsburg Dissent, joined by Sotomayor. On second thought, not going to write it up under the longstanding doctrine of: ‘What difference, at this point, does it make?
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Comments
It’s a shame that it takes the Supreme Court to restore common sense.
And what’s equally frightening is that this common sense is dependent on five votes!
This one was so obvious that it got 7. But if it didn’t have the usual 5 with a solid opinion to show them the right thinking, who knows what Kagan and Breyer would have done?
It has always struck me as odd that something nearly a century old, that has been in a public place for all that time, suddenly becomes forbidden and must be torn down because a tiny fraction of one percent of people latch onto it as a symbol of everything they hate.
My father’s grave in the National Cemetery has a cross above it, and one of his squadron members has a Star of David. If this case had gone the other way, I suspect the Humanists would next claim that such symbols have no place in the National Cemetery, on Federal land with the government providing the maintenance.
I am relieved that SCOTUS used historical precedent and common sense to preserve the religious symbols of our country’s deceased military members.
“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.”
What about the presence of a crescent moon? Or the amplification of the call to prayer?
Hmmm – I thought that was an interesting question, so did a quick search “Have there been any federal lawsuits about the display of Islamic religious symbols or broadcasting of the Call to Prayer?”
Can’t say the answer is “No”, but not a single one turned up in the search, at least in the first couple of pages of non-compliant answers. Guess that joins the answer about the number of people suing over the failure of a Muslim bakery to make a wedding cake for a homosexual marriage.
The reason you didn’t find any such lawsuits is simply because there are no such displays, so there’s nothing to sue over.
Interesting point…. since Islam is more than “just” a “religion” and requires “submission” any prominent expression could be construed as attempted domination and subjugation. Proponents wisely forget that there is no separation of church and state in Islam.
Or the amplification of the call to prayer?
Fortunately, a tinny amplified noise doesn’t persist for eighty years.
Ginsburg & the wise latina dissented. Color me not surprised.
Anyone know if this group has filed any lawsuits about Muslim footbaths and prayer rooms being built in US public schools across the country?
The target is ALWAYS Christianity. Solely Christianity.
from https://www.lewrockwell.com/2019/05/no_author/sobran-examines-hatred-of-christ/
There is an almost visceral hatred for Jesus Christ and His Church that is so over the top, so irrational, that one has to marvel at it. The world doth protest too much. Why? Is it fear? Perhaps, but the Church is not powerful enough to “force our views” on everyone, as some who hate us say that we do.
There is no rational explanation for the world’s intense fear of and hatred for Christ and Catholicism except to echo the words of Christ Himself:
If the world hates you, know that it has hated me before it hated you. If you were of the world, the world would love you as its own; but because you are not of the world, but I chose you out of the world, therefore the world hates you. Remember the word that I said to you: ‘A servant is not greater than his master.’ If they persecuted me, they will also persecute you. If they kept my word, they will also keep yours. But all these things they will do to you on account of my name, because they do not know him who sent me. If I had not come and spoken to them, they would not have been guilty of sin, but now they have no excuse for their sin. Whoever hates me hates my Father also. If I had not done among them the works that no one else did, they would not be guilty of sin, but now they have seen and hated both me and my Father. But the word that is written in their Law must be fulfilled: ‘They hated me without cause’. (John 15:18-25)
Yes, they hated Him without cause—at least any rational cause. There must be a cause, but it is so irrational that I surmise it must be that Satan himself is interacting with our flesh. Satan hates Christ in a way that he doesn’t hate Muhammad or Luther. Christ is a true threat, so Satan rages; the world and flesh draw from this rage and fear.
Think I’m exaggerating? It seems to be fine for excerpts from the Quran to be studied in public schools, but just try to put anything from one of the gospels into the curriculum and the outrage (closely followed by lawsuits) is nearly instantaneous. The annual “Christmas war” now targets not only nativity scenes and Santa Claus (a secular remake of St. Nicholas, by the way) but even the colors red and green!
Sobran said it well: Christ makes people lose sleep in ways that others do not. His words and teachings touch a core that others never do. That the world bristles is a compliment. Jesus Christ must be taken seriously. You may be mad, or sad, or glad, but no one goes away from Jesus Christ unchanged or merely “informed.” His words have an authority that demands a response. The world seems to know this and thus bristles. Some love Him and some hate Him, but few are neutral.
Why is this so? Could it be that Christ really is who He says He is: Lord and God? Could it be that it is His voice echoing in every conscience? This strange, irrational, excessive fear; this anger toward and even hatred of Christ attests to the truth of His claim to be the one whom we will either love or hate. One cannot serve two masters (Matthew 6:24).
Can’t expect Islam to be a target when it pretends to be ally of the Left that controls so much MSM. BTW Muslims can take comfort in their end-times teaching that Jesus himself will descend to destroy this and all crosses.
I think the right reaction is that if you find that your school district is doing that in any of its schools, you refuse to pay school taxes and say that the district is violating the Establishment Clause. You should have standing since you pay tax to support it, but especially if you have a child registered in the district.
Also we may eventually need jurisprudence on “what is a religion”. Islam’s aggressive practices and codes may cross the line on what can be a religion. If it weren’t for these things everyone would get along OK and Islam wouldn’t be a problem. But those things are at the very nature of Islam.
You don’t get protection of the Establishment clause just for saying your belief is religious. It has to actually be religious, too.
That is silly and outright wrong as a matter of law. There is no possible question that Islam is a religion. Any suggestion that it is not would be thrown out of court, with sanctions.
Very good arguments can be made that Islam is a political movement masquerading as a religion. I believe one ex-muslim has written a book or at the very least a magazine article claiming that.
The first amendment states Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. It does not prohibit Congress from defining what a religion is. Which is why we have Pastafarians adhering to the Church of the Flying Spaghetti Monster. Many of the nations of Europe which recognize freedom of religion require that religions be actual religions. Germany does not recognize Scientology as a religion. But hasn’t banned it, though there have been calls to do so. In many nations throughout the world, in countries that the notorious RBG thinks we should emulate, religions are required to register and be recognized as religions in order to operate.
Since 90+% of muslim “religious” leaders openly call for replacement of US constitutional law with sharia, a case could be made that islam as a whole is a subversive organization rather than a religion. There is no other religion, not any branch of Christianity, not Mormons, not Jews, not Buddhists, Shinto, Taoists, animists, not any other religion extant in the United States calling for the overthrow of our Constitutional order.
No argument at all can be made that Islam is not a religion. If someone has written a book to that effect he is playing his readers for fools. Anyone attempting to make such an argument in court is inviting a contempt charge.
Congress cannot define “religion” for the purposes of the first amendment, any more than it can define any other term in the constitution. That is the courts’ exclusive domain.
There is no other religion, not any branch of Christianity, not Mormons, not Jews, not Buddhists, Shinto, Taoists, animists, not any other religion extant in the United States calling for the overthrow of our Constitutional order.
This is just not true.
Your anger is noted. Sanctions? On what grounds?
What if we said that for purposes of the First Amendment, a religion must not advocate forcible conversions? That seems a reasonable restriction for the protection of religious peace (Ginsburg’s concern) and civil liberty here.
At the time the Constitution was enacted, we didn’t have any such aggressive religions here. Islam was far away over the Atlantic, and eventually Jefferson had to deal with them. But there’s no reason to think he imagined that it would show up over here and start using the provisions they were writing to protect itself here.
There is nothing to sue over. Footbaths are not religious, and are an accommodation to student’s private religious needs that is not only unanimously accepted as permitted, but may even be legally mandatory. If Christian students needed some similar accommodation every school in the country would have it as a matter of course. Public schools do not have dedicated Moslem prayer rooms; they make rooms available for student use on request, on a completely neutral basis.
“Footbaths are not religious, and are an accommodation to student’s private religious needs. . .”
How can they be not religious AND an accommodation to religious needs at the same time?
Alito’s reasoning is unsound, perhaps even dangerous. Perhaps the verbosity of the decision obscures the noxious bits.
The passage of time gives rise to a strong presumption of constitutionality.
So it looks like Alito would be reluctant to re-evaluate, say, the National Firearms Act, since that was inflicted on us in 1934, or the sneaky Hughes Amendment to the FOPA ’86 . . . despite that “shall not be infringed” thing.
It took SCOTUS seventy-four years to admit that it bungled the decision in Korematsu v. United States, and it wasn’t “constitutional” after all, despite the passage of time.
On the contrary I like the reasoning. It is possible for a society to take on a cultural identity even under the constitution. The constitution is said to be the supreme law of the land, but not the only law of the land.
Otherwise, we get newcomers shaming us for our traditions and saying “that’s not who we are”, erroneously.
I believe the holding could be easily distinguished from abstract concepts such as rulings and holdings. The cross was a physical thing and is distinguishable from an easily fungible concept such as a law. You aren’t moving/destroying that cross absent substantial physical effort. Concept versus physical object. I rather like Thomas’ take on it. The Congress made no law, it’s done.
Thomas does seem a bit less fuzzy-minded than Alito here. That’s why I offer no criticism of his comments.
“On second thought, not going to write it up under the longstanding doctrine of: ‘What difference, at this point, does it make?”
Schwack!
Nice one, Professor!
Eliminating the right of the “offended observer” to sue in federal government would solve more than one problem…
Gorsuch “So at this point you might wonder: How did the lower courts in this case indulge the plaintiffs’ “offended observer” theory of standing?” Ouch.
In Ginsburg’s dissent, in her introduction she notes that the Jewish War Veterans (just one group of Jews, you can find a liberal and a conservative Jewish group on just about any question) wrote that the cross does not speak to all religious faiths including theirs. This is of course true. Personally I like the history and the honorable purpose of the memorial and am glad the government is not “scouring the landscape” (Alito’s words) looking for stuff to remove.
But Ginsburg herself shows another good reason to keep that cross where it’s been for 94 years. In Section IA just below the introduction, she notes the religious turmoil that existed before the Constitution imposed the Establishment Clause. In our country we’ve had over two centuries of religious peace, but that peace is now threatened by Islam.
This is no time to start disrupting our status quo and natural barriers against the growth of a religious regime that was aggressive far away up through Jefferson’s presidency, and in fact has been aggressive in every place and time it’s taken root. Ginsburg says the reason for the Establishment Clause is to promote religious peace and harmony. To do that, leave our symbols and traditions intact.
I remember the first time I heard someone say “Well, I’m an atheist, so you shouldn’t pray over the food.” I thought it was stupid then, and remains stupid to this day.
Of course we have religious symbols associated with our beloved dead, because so many people turn to their religion for comfort in the face of the death of a loved one. The first thing I noticed about the Bladensburg cross is that it is not a crucifix. It is not tied to a denomination. This was probably intended to be an inclusive symbol. The vast majority of our honored dead were Christian of some variety or another, and in this country, a simple cross had become a classic grave marker.
It pleases me that, in another era, a sea of simple grave markers with crosses carved into them is punctuated by the occasional Star of David. I would hope an agnostic or atheist family could request a blank, and I have no objection to a crescent for any person buried at Arlington, who was Muslim and served honorably.
I would leave the memorials of the dead as the mourners placed them. It was something a grieving people agreed to, at the time. We do not need to scour our country to find monuments to pull down to satisfy the ahistorical hysterics of the day.
Thomas, as usual, has the most logical position. Unlike the rest of the first amendment, the establishment clause protects no right. Congress is prohibited from establishing a national religion, but if it does so it violates no individual’s rights (so long as the establishment is not accompanied by coercive measures such as the religious taxes that existed in the 17th and 18th century). Therefore, unlike the rest of the first amendment, it’s not incorporated into the 14th amendment.
(This does leave the uncomfortable question of who has standing to sue if Congress does establish a national church. I think we have to stick with the “offended observer” theory, because who else could sue? However that is not relevant to this case, which is about Maryland, not the USA.)
Alternatively, one might argue that an established church that is not accompanied by any coercive measures at all is not what the first amendment’s ratifiers had in mind, and they would not have thought of it as an established church at all. In that case, even if technically it’s still prohibited by the text, nobody can sue so in practice it’s permitted, and that’s not a problem.
I could have expected you to say this, because it’s clever but wrong. Thomas is right on originalist grounds. That position was right in the early 1800’s, but (unprincipled as it is) it’s not right now.
The issue is that we’d start seeing crescents and minarets getting protected.
Now I have nothing against those things in other countries, and I enjoy visiting other cultures and have been to some countries where it’s practiced. I got along fine with those people.
But it doesn’t play well with other cultures. It’s an issue that was not imagined in the debate of the Establishment Clause. Ginsburg in her dissent speaks of the religious turmoil that preceded the Establishment Clause. But that turmoil was different because it did not include Islam. Islam is different. It’s religiously imperalist.
Crescents and minarets are protected by the first amendment. They always have been, just like crosses. The amendment’s framers and ratifiers certainly did have Islam in mind. It was a theoretical issue then, not a practical one, but they did contemplate the possibility that there might be Musselmen in America and fully intended them to have the same protections as Christians, Jews, Hindoos, and “every kind of infidel”.