The Supreme Court last week finally resolved a constitutional challenge to the Bladensburg “Peace Cross,” ultimately ruling seven to two that the cross may stand. What is much less clear is whether there is any consensus as to how the Court will resolve future cases regarding the Establishment Clause of the First Amendment, that “Congress shall make no law respecting an establishment of religion.”
As discussed in this space before, the case was brought by the American Humanist Association (AHA) against the Maryland-National Capital Park and Planning Commission (M-NCPPC). The monument is a Latin cross 40 feet tall that sits on 1/3 of an acre at the intersection of Route 450 and Route 1 in Blandensburg. It was erected in 1925 as a memorial to veterans of Prince George’s County killed in World War I. However, in 1961, the M-NCPPC took onership of the cross and memorial park in which is sits, primarily for traffic safety, and over the years has spent money to maintain it and restore it.
A divided Fourth Circuit Court of Appeals in applying the Supreme Court’s test from the Lemon case held that the cross was unconstitutional, because the primary effect of the display is to advance, inhibit or endorse religion, and it fosters an excessive entanglement between religion and the state. The seven justice majority overruled the lower court and upheld the constitutionality of the cross, but in so doing, wrote a number of opinions showing how the justices are divided. Justice Samuel Alito’s plurality opinion did not apply the Court’s former test, but held that because of the monument’s age it had become a “community landmark” rather than a religious symbol.
He wrote that such a monument does not primarily convey a religious message, particularly for World War I monuments. In his view, even if it had a religious purpose originally, over time it may be retained for historical or cultural significance. Three other justices concurred only in the result. Justice Brett Kavanaugh would limit the Establishment clause only to government action forcing support of religion. Justice Clarence Thomas wrote that the Establishment clause applied only to Congress, and not the states. Justice Neil Gorsuch would hold that persons offended by religious symbols lack standing to even sue.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.