Judiciary

War Memorial Crosses in Atheist Crosshairs

The Supreme Court heard an important argument about Maryland's Bladensburg cross.

Nate Jackson · Feb. 28, 2019

Militant atheists have long attacked memorial crosses over supposed First Amendment violations. From the Mt. Soledad cross near San Diego several years ago to the case heard by the Supreme Court Wednesday regarding Maryland’s Bladensburg cross, these memorials to Patriots who made the ultimate sacrifice to defend this great nation are unacceptable to a certain litigious contingent.

In the Maryland case, lower courts disagreed on whether the 40-foot cross, erected in 1925 by the American Legion to honor 49 Marylanders killed during World War I, represents an “establishment” of religion. In 2015, a federal judge in Maryland rejected a suit by the American Humanist Association, saying, “The predominant and nearly exclusive use of the Monument has been for annual commemorative events held on Memorial Day and Veterans Day.” However, the Fourth Circuit Court later ruled the cross unconstitutional, asserting that any reasonable observer would conclude the cross’s “inherent religious meaning” means the government “either places Christianity above other faiths, views being American and Christian as one in the same, or both.”

Jurisprudence in similar cases has been inconsistent — as Justice Clarence Thomas put it last year, the Court’s “establishment clause jurisprudence is in disarray” — so the justices have a chance to clear up a larger issue if Chief Justice John Roberts doesn’t insist on another narrow ruling. As the American Legion said in its brief, “If a century-old war memorial that is only in government hands because of traffic safety considerations arising 40 years after it was built is unconstitutional, it is difficult to conceive of any cross-shaped monument that will survive.”

There are hopeful signs for a right outcome, whether narrow or broad. While the women on the Court’s left wing seemed hostile to the cross, the other justices appeared amenable to keeping it. And it’s worth remembering however the justices rule that when Thomas Jefferson wrote of a “wall of separation between Church and State,” it was in a private letter, not constitutional language. Jefferson clearly didn’t intend for the metaphor to become legal doctrine as modern courts have made it. The leftist interpretation is a myth.

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