What exactly does the cross stand for, and who gets to decide?
The Supreme Court will wrestle with the question on Wednesday morning when it hears oral arguments in American Legion v. American Humanity Association. The case is ostensibly about a World War I monument in suburban Maryland that’s shaped like a four-story crucifix. What the justices will ultimately decide is how much latitude the government should get in showing favoritism toward particular faiths. Running through the dispute is a familiar question at this moment in American politics: How should a country grapple with the symbols of its turbulent history?
At issue in the case itself is a 40-foot concrete Latin cross that stands in the traffic island of a Maryland highway between Washington, D.C., and Baltimore. Community leaders in Bladensburg, Maryland, erected it in 1925 as a memorial to local soldiers who had died during the first World War. In 1961, the Maryland-National Capital Park and Planning Commission acquired both the cross and the sliver of land upon which it rests. State officials cited concerns about the cross’s impact on traffic visibility when they assumed responsibility for it, and taxpayers have paid for its maintenance and care ever since.
The American Humanist Association filed a lawsuit against the commission in 2012 on behalf of local residents who oppose the cross, arguing that its placement violates the First Amendment’s prohibition of the establishment of religion. For more than 50 years, federal courts have used the Establishment Clause to prohibit state and local governments from favoring one faith over another, or any faith over none at all. The American Legion, which originally built the cross, intervened in the lawsuit and argued that the monument’s upkeep was a permissible use of government funds.
Persuading the courts that a four-story cross in the middle of a public highway doesn’t show religious favoritism turned out to be a tall order. Last October, a three-judge panel in the Fourth Circuit Court of Appeals ruled against the monument in a 2-1 decision. “The Latin cross is the core symbol of Christianity,” Judge Stephanie Thacker wrote for the majority. “And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds. Therefore, we hold that the purported war memorial breaches the ‘wall of separation between Church and State.’”
The Fourth Circuit ruled against the cross by using what’s known as the Lemon test, which derives from the 1971 case Lemon v. Kurtzman and its subsequent rulings. To survive judicial scrutiny, a law or official act must have a secular purpose, must not “advance or inhibit religion,” and must not amount to an “excessive entanglement” with religion. The government must pass all three parts of the test or it flunks. The panel found that the Bladensburg cross failed the second and third prongs of the test and ruled that it violated the Establishment Clause accordingly.
Social conservatives often criticize the Lemon test for imposing strict boundaries on official religious displays in public life. Conservative legal scholars have also criticized inconsistent applications of the test in the lower courts. In its brief for the Supreme Court, the American Legion asked the justices to decide the case under different grounds. The group pointed to Town of Greece v. Galloway, a 2014 decision where the court upheld a town council’s use of a sectarian prayer before meetings. Justice Anthony Kennedy wrote for the court then that the prayer was permissible because it did not “coerce participation by non-adherents.”
The American Legion asked the court to use that standard instead of determining whether a government act amounts to an official religious endorsement. They argue that focusing on coercion is more faithful to the original understanding of the First Amendment’s drafters than the current set of legal standards. “The Peace Cross does not violate the Establishment Clause because it does not coerce religious belief, practice, or financial support—whether through compelled profession or observance, excessive proselytization, or other historically grounded means,” the group wrote in its brief.
The Legion readily acknowledges that under their preferred standard, official displays of religious iconography “will almost never be coercive.” The American Humanist Association understandably opposes that proposed test. “Coercion is certainly a clear example of an Establishment Clause violation, but no more so than sectarian favoritism,” they told the court in their brief. The AHA instead focused on the Establishment Clause’s command for American governments to maintain religious neutrality. “The central principle of the Establishment Clause is that the government cannot align itself with a single religion,” they wrote.
While the two sides differ on how they interpret the Establishment Clause, the greater gulf is in how they interpret American history. To the American Legion, the Bladensburg cross only reflects a community’s patriotic desire to commemorate its war dead. Any religious symbolism, they argue, is secondary to its secular purpose of honoring American soldiers. “The builders’ decision to create a cross-shaped memorial reflects the fact that, during WWI, crosses became a well-recognized symbol of the losses of the war,” the group explains.
The AHA disputed the suggestion that Christianity could represent all those who died in the conflict. “When the government prominently displays a large Latin cross as a war memorial, it does more than just align the state with Christianity; it also callously discriminates against patriotic soldiers who are not Christian,” they told the court. Transmuting the cross into a symbol of world war also did not go unchallenged. “That distortion should be rejected, not only because it amounts to legal chicanery, but also because it works the very kind of harm to religion that motivated the Establishment Clause’s passage,” the group argued.
To refute the cross’s supposedly ecumenical appeal, they also drew upon darker aspects of the state’s history. In the 1920s, Maryland law made it illegal “to blaspheme or curse God or write or utter profane words about our Saviour Jesus Christ or of and concerning the Trinity or any of the persons thereof,” the AHA told the court. The state also imposed a religious test to exclude atheists from public office until 1961. Nearby towns used restrictive covenants to keep prospective Jewish homeowners out of their communities at the time. The group pointed to local reports that the Ku Klux Klan marched in 1925 from “the peace cross at Bladensburg to the fiery cross at Lanham,” and claimed that Klansmen were also often members of American Legion chapters at the time. “Do we really want to settle on a test that fails to consider the values that our nation has developed since that era?” the AHA asked the court.
“These claims are as ludicrous as they are revolting,” the American Legion shot back in its reply brief. The veterans’ organization pointed to testimony from the AHA’s own expert that the Legion was a “remarkably diverse and ecumenical organization” in the 1920s, with thousands of Catholic and Jewish members. Among them, the Legion said, was J. Moses Edlavitch, a Jewish veteran who ranked among the local chapter’s leaders and signed the deed for the land upon which the monument was eventually built.
Though the American Legion and the commission stressed the cross’s non-sectarian nature, other supporters of the Bladensburg cross warned that its removal would threaten other Christian symbols in American civic life. The Thomas More Law Center, in its own friend-of-the-court brief, argued that the Fourth Circuit’s decision itself “demonstrates a hostility towards religion” that the First Amendment prohibits. The conservative legal organization then denigrated the beliefs of those challenging the cross’s placement. “Allowing a historic war memorial to be destroyed to quell some momentary discomfort plaintiffs feel when they drive past the Bladensburg monument would do real and lasting harm to this country,” the group told the court.
Some of the monument’s other supporters went even further. The Foundation for Moral Law, a legal advocacy group founded by former Alabama Chief Justice Roy Moore, filed a friend-of-the-court brief noting that the National Mall in Washington, D.C. also resembles a crucifix. “If Congress can expressly reference the Latin cross as the basis for the plan for the National Mall, the City of Bladensburg can erect a Latin cross as a memorial to American veterans,” the group told the court. “Or must we now plow under the National Mall?”
The Fourth Circuit dispensed with slippery-slope arguments in its ruling last year when the American Legion and the commission both warned that monuments at Arlington National Cemetery would be imperiled if they lost. “The crosses there are much smaller than the 40–foot tall monolith at issue here,” Thacker noted. “And, significantly, Arlington National Cemetery displays diverse religious symbols, both as monuments and on individual headstones. Contrast that with the Cross here. There are no other religious symbols present on the Cross or in the entirety of the Veterans Memorial Park [in Bladensburg]. Christianity is singularly—and overwhelmingly—represented.”
Thus it always was, and thus it always shall be? There are familiar echoes in this debate to the one over the hundreds of Confederate monuments scattered throughout the nation’s civic spaces. A World War I memorial cross is not, of course, morally equivalent to statuary tributes to treason and white supremacy. But what they share is forcing the country to reckon with how it has morally and culturally changed over its lifespan. They also serve as reminders for how our public history not only excludes Americans today, but may have excluded some of them all along.
The American Legion and the commission have the unenviable task of convincing the Supreme Court that a four-story rendition of the Christian faith’s most widely recognized symbol is not what it appears to be. The American Humanist Association must instead persuade the justices that the Constitution compels a 90-year-old war memorial’s removal and relocation. The justices’ decision, whatever it may be, will be delivered by the end of June.