It looks like America’s next big religious-freedom case could center on the war memorial known as the “Peace Cross.” The Supreme Court justices recently agreed to hear the case this year.
God bless this honorable court, I say. If ever there were a chance for it to steer our law back to rationality in respect of religion in public places, this lawsuit is it.
The case involves a memorial at Bladensburg, Md. It features a 40-foot-high Latin cross. Gold Star Mothers designed the memorial. They’d lost 49 sons of Prince George’s County in World War I.
Among them are white and African-American soldiers, testament to the diversity of the GIs who, in their time, made the world safe for democracy, including ours. Their names are inscribed at the memorial.
Private funding launched the project. In 1922, funds ran low. The American Legion took over. At the base of the cross of concrete and bronze are the words “valor,” “endurance,” “courage” and “devotion.”
Upkeep of the memorial, which is now surrounded by a traffic median, was taken over by the state in 1961. For some 90 years, secular and religious observances have taken place at the site without trouble.
Then, five years ago, three humanists went into district court with a complaint. One was Steve Lowe, who lives nearby and complained that he kept encountering the cross as he drove or bicycled by.
“As a non-Christian, Mr. Lowe is personally offended and feels excluded by this governmental message,” the complaint says. He “does not wish to encounter the Bladensburg Cross in the future.”
It happens that I have a lot of regard for atheists. They have been numbered among our country’s greatest figures. All are owed protection of the Constitution. As are all religious Americans.
The humanists, and the American Humanist Association, which joined them in the suit, want the memorial shorn of the horizontal beams that make it a cross. That way it would look like an obelisk.
In my opinion, that’s ridiculous, even offensive. And the US court for the District of Maryland told them to take a hike. When it got to the Fourth Circuit Court of Appeals, though, the humanists won.
Maryland’s war memorial, the Fourth Circuit ruled, violates the Establishment Clause of the First Amendment. It says Congress shall make no law “respecting an establishment of religion.”
The court went through a legal process called the “Lemon Test.” That’s a Supreme Court precedent that Justice Antonin Scalia once said “stalks” our Establishment Clause jurisprudence.
Maryland’s memorial, the judges concluded, passed the first “prong” of the Lemon Test. It had a secular purpose. Yet it flunked the prongs that prohibit advancing religion and entangling the state with it.
The Lemon Test itself, though, has become an issue. For it does not merely constrain government. It sets up hurdles people have to jump through to freely exercise their First Amendment religious rights.
No wonder Scalia once likened the Lemon Test to “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”
That the Supreme Court agreed to take this case suggests that at least four of the nine justices think the defenders of the memorial — the American Legion and Maryland — have a case.
It holds out the hope that the Lemon Test may itself be modified or overturned. That would be a victory for millions who fear that First Amendment law is being turned against religious Americans.
George Washington himself — in his farewell address, no less — warned against the idea that “national morality can prevail in exclusion of religious principle.”
More than 661,000 Americans have fallen for our country. Row after row of them lie under crosses, Stars of David and Islamic crescents in military cemeteries on our most sacred soil.
Let the Supreme Court hearken to a dissent by the chief judge of the Fourth Circuit, Roger Gregory. The memorial, he wrote, stands in witness to the valor, endurance, courage and devotion of the 49 GIs.
“I cannot agree,” he concluded, “that a monument so conceived and dedicated and that bears such witness violates the letter or spirit of the very Constitution these heroes died to defend.”