Supreme Court justices Wednesday questioned whether the historic and commemorative significance of a 40-foot cross should allow it to remain on public land in Bladensburg, Md., where it has stood for 94 years.
The Supreme Court is expected to decide whether the cross, a memorial dedicated to 49 local men killed in World War I, is in keeping with the Constitution’s First Amendment and the separation of church and state. The outcome of the case could affect other veterans memorials nationwide.
While hearing from the cross’s challengers and supporters, at least one of the court’s liberal justices appeared willing to consider the cross a WWI symbol, in addition to its religious meaning.
That secular symbolism would make the monument constitutional, argued Neal Katyal, a Washington lawyer representing Maryland-National Capital Park and Planning Commission, which owns the land where the cross sits.
“World War I does have this history that this is how soldiers were memorialized,” said Justice Elena Kagan, President Barack Obama’s former solicitor general. “Because of the battlefields where there were just rows and rows and rows of crosses, the cross became — in peoples’ minds — the pre-eminent symbol of how to memorialize WWI dead.”
Justices Sonia Sotomayor and Ruth Bader Ginsburg, also in the court’s liberal wing, were less willing to separate the cross from its meaning as a symbol of Christianity.
“Does the cross really have a dual meaning, Mr. Katyal?” Ginsburg asked. “It is the pre-eminent symbol of Christianity. People wear crosses to show their devotion to the Christian faith.”
In 2014, three local residents and the American Humanist Association, which promotes ethics and the well being of humanity without religion, filed suit against the planning commission to move or alter the monument, arguing that it violated the Establishment Clause of the First Amendment: “Congress shall make no law respecting an establishment of religion.”
The American Legion joined with the park and planning commission to defend the cross. The memorial, called the Peace Cross, was erected in 1925 with funds partly raised by the Legion, and its symbol is emblazoned on it.
The words “courage,” “valor,” “devotion” and “endurance” are also etched into the cross. A plaque on the bottom lists 49 names and has a quote from President Woodrow Wilson:
“The right is more precious than the peace; we shall fight for the things we have always carried nearest our hearts; to such a task we dedicate ourselves.”
A federal district court determined in 2015 that the monument served a secular purpose – to honor veterans, rather than promote Christianity. However, the U.S. Court of Appeals for the Fourth Circuit thought differently, ruling later the cross was unconstitutional.
The American Legion petitioned for the Supreme Court review.
“Families and the Legion built it … to commemorate 49 brave souls who gave their lives in World War I, and it has stood since that time without challenge,” Katyal said. “This case, because of its 93-year tradition, is an easy one.”
While the cross’s supporters venerate the Peace Cross as a historical tribute to the war fallen, its opponents argue it promotes Christianity and excludes non-Christians.
“I don’t think that you can say this is just some sort of passive display that people don’t take note of,” said Monica Miller, representing the American Humanist Association. “How people are processing a monument like this is sort of like a billboard. It kind of engrains in your mind that there is this association between being Christian and having valor, having courage, and what message that sends to the religious minorities.”
Miller noted the monument’s size multiple times during her argument. The 40-foot cross dominates other memorials in that area, she said.
Justice Sonia Sotomayor, appointed to the bench by Obama, also took issue with its size.
“I have pictures of this cross,” she said. “It’s the only thing that’s that high. It dwarfs buildings. It dwarfs people. You can barely see them in the pictures.”
Mliler said the preferred outcome for the cross’s challengers was to have the cross moved to private land -– something Katyal said couldn’t be accomplished because of its condition.
“Because of cracks in this cross, it very well may be destroyed,” he said.
In an amicus brief filed with the Supreme Court, the Veterans of Foreign Wars warned the outcome of this case could threaten “countless” memorials across the country.
“While these memorials have long served to focus the country on what binds us together, the [appeals court] decision threatens to convert them into something that tears people apart,” the VFW wrote.
The city of Taos, N.M., also filed an amicus brief, with concerns that its war memorial could be affected by the decision. A memorial in its city plaza is dedicated to World War II dead and includes a bronze cross.
Miller argued that the cross’s supporters were exaggerating the consequences on other memorials. While some people estimated the number of affected memorials to be 50 to 100, she claimed it was closer to 10 or 20.
It’s the size and location of the Bladensburg cross that make it particularly egregious, Miller told reporters.
Outside the Supreme Court on Wednesday, two factions gathered: the American Humanist Association with the cross’s opponents, and — about 10 feet away — members of the American Legion who said they were there to show their silent support for the cross.
Kevin Bartlett, the national judge advocate for the American Legion, worried about the larger consequences of the case.
“Where are you going to stop? When are the bulldozers going to start?” Bartlett asked. “If this case goes the wrong way, they just have to go to legion.org and find where those memorials are located. The next thing you know, they’re going to start tearing those down, and it’s just such a disgrace.”
“We can’t let these memorials go,” he said. “We have to honor them.”
A family member of one of the 49 servicemembers honored by the cross joined the Legion members. Mary Anne LaQuai, 80, said her uncle, Thomas Notley Fenwick, was listed on the plaque at the base of the memorial.
LaQuai lives in Hyattsville, about one mile from the cross.
“I drive by all the time, and I think of my uncle,” she said.
Steven Lowe, one of the three Bladensburg residents who filed the lawsuit criticizing the cross, stood behind a podium on the Supreme Court steps. Following oral arguments, Lowe said he was optimistic about the case and believed Sotomayor, Kagan and Ginsburg would side with the cross’s opponents.
“It’s just a big-ass Christian cross in the middle of the road,” Lowe said. “It is not a symbol of the USA or our veterans.”
Stars and Stripes staff member Meredith Tibbetts contributed to this report.
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