Quote of the Day: U.S. Supreme Court Errs on Bladensburg Cross Decision

bladensburg-cross

In The American Legion vs. American Humanist Association, the Supreme Court considered whether the establishment clause barred a government-sponsored display of a 40-foot cross, known as the Bladensburg Cross, on public land, as a memorial to men of Prince George’s County, Maryland, who had died in World War I. The U.S. Court of Appeals for the 4th Circuit, applying the well-known and long-derided three-part test from Lemon v. Kurtzman, had held in 2017 that the display unconstitutionally endorsed Christianity and ordered its removal from public land. Seven justices voted to reverse, so the Bladensburg Cross will remain in place. But the case produced six separate opinions, and demonstrated that the court remains starkly divided on fundamental questions about the meaning of the establishment clause.  Some aspects of the legal discourse of non-establishment will change, but the standards that will emerge to govern particular questions remain up for grabs.

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The Bladensburg Cross opinion appears to be sheer rationalization, in the worst meaning of that word. Those five Justices quite transparently looked for a way to reverse the Fourth Circuit, while rejecting the previous “no endorsement” test. Instead, the court opinion engages in its own form of lawyers’ history and social psychology associated with that test. The court determines that, over time, the predominant Christian meaning of the Bladensburg Cross has been replaced by one that focuses on the “sacrifice” of American soldiers in World War I.

This is a narrative purposely divorced from historical awareness. The Court claims ignorance of any religious purpose behind the choice of a cross as the memorial to soldiers who died in World War I. But commentators in the decades before and after 1920 regularly claimed that the United States was a “Christian nation.” In that cultural and political milieu, choosing a cross as a war memorial directly reinforced the concept of religious nationhood. As the court recites, the dedication ceremony’s keynote speaker proclaimed the cross as “symbolic of Calvary” and fitting tribute to those who gave their lives in a “righteous cause.”

When Jewish soldiers died in World War I, their gravestones were marked with Stars of David. But each such gravestone represented only the person buried beneath it. No one would have thought to use a Star of David as a generic memorial for all in a military cemetery. In contrast, the use of a Cross as a memorial seemed a natural default option.

The Court’s opinion admits to the Christian origin of the Bladensburg Cross, but asserts that some new public meaning has sufficiently muted the uniquely Christian character of the Latin Cross. By some magic of history and tradition, the sacrifice symbolized by the Cross has ceased to be specifically Christian and become far more inclusive. The Court never provides any evidence to support the judgment that the cross is now an historical monument with indefinite religious properties. We strongly suspect that majority preferences and ethno-centrism, not an objective social psychology of symbols, drive such choices.

For years, critics lambasted Justice O’Connor’s invocation of the “reasonable observer” as a way of measuring government endorsement of religious symbols. But the Court’s approach differs only in that it has adopted unreflectively the perspective of Christians in a political majority, without regard to the perspective of others.

The Bladensburg Cross opinion is even worse as a matter of theology. The Court invokes the image of fields of crosses for soldiers who died in the war. For Christians, a cross marking a grave signifies the unique event of Jesus’ death on Calvary and subsequent resurrection by the Father, with a promise of eternal life. The Court declares, however, that the Bladensburg Cross is fundamentally the same as the individual grave markers.

In doing so, the opinion attempts to transform the cross into a more generalized symbol of sacrifice in pursuit of noble causes. The Latin Cross, as a war memorial, symbolizes those lives given in service of our national ideals. This is heresy for Christians, because it suggests that the cross symbolizes all lives given to achieve the goals of a particular nation-state, rather than a unique, redemptive intervention by God in human history.

The Bladensburg Cross opinion thus manages to offend thoughtful Christians without ameliorating the offense to non-Christians, whose memory is supposedly included in any general war memorial. Some Christians may celebrate this decision, but it should instead be mourned as a political misappropriation of the faith’s central symbol.

— Robert W. Tuttle and Ira C. Lupu, Take Care, The Bladensburg Cross Decision – A Twisted Cross and the Remaking of Establishment Clause Standards, June 24, 2019

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12 Comments

  1. Kris

    Bruce

    I am obviously not a Christian. However I am a retired soldier who has lost friends in combat. That cross was erected in the 1920s to honor dead soldiers. Certainly some of the people who helped with the cross lost loved ones during the First World War.

    That cross has been there for almost a century. It was meant to and still does honor the sacrifice of soldiers who died in the First World War.

    I am not a Christian and I respect that cross because those soldiers who died are in a sense my brothers. I would be furious if a memorial to my brothers was torn down.

    There are important battles to wage against fundamentalism. However fighting over an almost century old cross to honor dead soldiers is not one of them.

    Honoring fallen soldiers of the First World War is both secular and spiritual. A community landmark is also both.

    Reply
    1. Bruce Gerencser (Post author)

      My main objection is the irrational rationale the Court used: the Christian cross is secular. It is not, and Christians should be outraged over this decision. That said, I don’t want the cross removed. All I wanted was for the court to rule that such monuments are and remain violations of the establishment clause. Send a warning to public institutions that says: no more. I generally don’t support removing historical monuments. Of course, how do we define “historical?” I prefer plaques being added to monuments, giving their historical context.

      Reply
      1. Kris

        It is secular though; in this case. It honors secular values related the valor of First World War soldiers.

        Have you ever been to Arlington Cemetery? Many of those gravestones have religious symbols on them. Seeing Arlington is government owned does that not violate the establishment clause?

        That cross is not establishing a religion; it is honoring war dead. Religious symbols on graves in Arlington are not establishing religions; they are honoring that soldier.

        The Supreme Court made the right decision. The Founding Fathers would be mortified to see the Establishment Clause being aimed at a cross that is a war memorial.

        Reply
        1. Bruce Gerencser (Post author)

          Sorry, but I wholeheartedly disagree. The fact that Jewish military graves are marked with a Star of David, and not a cross, shows clearly that the cross is a religious symbol. It has ALWAYS been a Christian symbol. Appeals to history only reveal that Christianity has always had an unholy alliance with the government. Our founding documents are living, breathing documents that have evolved over time. We now have a better understanding of how church-state entanglements offend non-Christians and, at times, cause harm. Your appeals to history reflect a time when non-religious people were routinely marginalized and treated as outcasts. Atheists, humanists, secularists and other non-Christian war dead weren’t given an option as to what markers they wanted — if any — on their graves. Since the United States was/is a Christian nation, it was/is assumed that the symbols of that religion were/are appropriate for local, state, and federal governments to use on public property. Doing so is clearly a violation of the establishment clause and the separation of church and state.

          Again, let me be clear, I am not in favor of removing the crosses. Unfortunately, this ruling will embolden Christians to put sectarian Christian symbols on public property and in public buildings. I am a firm believer in a strict separation of church and state. War dead can be memorialized without religious symbols UNLESS the dead soldiers specifically ask for such symbols on their graves. If a cross is requested, fine, but let’s not pretend that the cross is anything but a sectarian religious symbol.

          Thanks to the U.S. Supreme Court now having a conservative majority, we should expect to see more rulings that trample under foot the establishment clause, the First Amendment, the separation of church and state, etc. Much as they have with abortion, Evangelicals and conservative Catholics will do everything in their power to re-establish King Jesus’ seat at the head of the table. You see this in a different light than I do, but history tells me that if we give theocrats an inch they will take a mile. Today, the Bladensburg Cross, tomorrow creches, crosses, and stone Ten Commandments monuments adorning public property. I intend to do what I can to push back such attempts, knowing that the joining of church and state leads to loss of freedom and bloodshed.

          Well, I have said my piece. 🙂 I’ll leave it to you and other readers to put in their two cents.

          Reply
          1. Kris

            Bruce

            Separation of Church and State means separation but it is not an absolute separation. For example as a teacher I know teachers who wear crosses ( nothing extreme) to work. They do not shove their Christianity down anyone’s throat. They are excellent professionals ; should they be forced to keep their crosses at home?

            Arlington Cemetery has graves with Crosses, Stars of Davids etc, do you think these gravestones should be ripped up now? I have been to government owned cemeteries where some of the graves are built in the shape of the cross. Should the government be forced to remove those graves?

            Unless you answered yes to all the above then you concede the separation is not absolute.

            The establishment clause refers to forming something like the Anglican Church. This cross is not forming a state run church.

            Endorsing religion means the government recommends a particular religion but I fail to see how a war memorial in the shape of a cross does that.

            For example a memorial to the Holocaust in Ohio uses a Star of David. Do you think this means Ohio endorses Judaism?

            Do you think the fact that New York State displays the World Trade Center cross means New York is endorsing Christianity?

            I live in Georgia. Various state run museums and parks display Indian religious artifacts. Do you think this means the State of Georgia endorses Indian beliefs now?

            This war memorial does not establish a religion nor does it endorse a religion ( if you look at the plaque on it the message is secular. Odd if they wanted it to be a religious monument they forget to say anything religious ).

            I am not a Christian and none of the above offends me. On the other hand destroying war memorials highly offends me.

            There are worthy battles to fight to protect Separation of Church and State. This was never one of them.

            By the way the ruling was 7-2. Even some of the liberal justices were not convinced by American Humanist.

          2. Bruce Gerencser (Post author)

            As I said twice, I don’t support removing historical religious monuments on public property. We can address their Constitutionality without removing them, while saying to governments, going forward attempts to establish/promote sectarian religion will be deemed unconstitutional.

  2. Kris

    Bruce

    There is no such thing as a grandfather clause when it comes to Unconstitutional acts. If something is Unconstitutional then it has to stop. If this cross has been declared Unconstitutional it would have had to come down. Period. That would have opened to door to every grave on public property with any religious symbol or any public memorial with a religious symbol on it being turn down no matter how much of a secular purpose they serve. You are clearly not prepared to do that. That is what American Humanist wanted.

    The right would have had a field day with this. For years they have been howling that the left is engaging in a war against religion in particular Christianity. Now you just handed them a war against religion; in particular Christianity! Right wing social media would go insane with pictures of this cross being taken down. And a cross as a war memorial!! Bonus points!! Now they get to tar the left as unpatriotic!!

    Taking down that cross would be a Pyrrhic Victory if there every was one for American Humanist.

    Reply
    1. Bruce Gerencser (Post author)

      Who cares what right-wing media thinks? I don’t care one whit about their thoughts on a host of issues, separation of church and state included.

      There are ways to accommodate these memorials without bringing them down, Take the Civil War monuments in the South. Leave the monuments up, but put a plaque on them explaining their history and how they are viewed today,

      We ARE waging a war against Christian preference, entitlement, exclusivity, and control in government. If we are truly a secular state, then sectarian religion has no place in government, either as an arbiter of law or a standard of justice. If our government represents we the people, then sectarian monuments, symbols, prayers, and clerics, have no place on/in public property.

      I’m a pacifist and a socialist, so I live with being tarred as unpatriotic every day. I’ve never been one to let how people view me or my beliefs to dictate how I live. In fact, having right-wingers outraged at me makes my day. They, like their religion, hinder social, progress. The only way to eliminate their influence is to roll up our sleeves and work/fight to make things better.

      Reply
      1. Kris

        Who cares what right-wing media thinks?

        Half the country does. Our neighbors. And more importantly voters.

        The Civil War monuments are not in any way Unconstitutional as they do not in any way establish or endorse a religion. They are simply bigoted which while odious is legal. Therefore you can put up a plaque explaining how they are currently viewed. Compromise.

        If the Bladensburg Cross was declared Unconstitutional then it would have had to come down; there is no such thing as a grandfather cause for Unconstitutional acts. So what is next? Take down the 9/11 cross in New York? Take down the Star of David at the Holocaust Memorial? Remove every cross shape gravestone from every public cemetery? Remove every religious symbol from every grave at Arlington? Remove the Chapel at every military academy? All of that can would easily be justified with the broad brush being used by American Humanist.

        Why can’t clerics go on public property? Are they not citizens? If a church wishes to visit a state park are they not permitted? If they wish to pray in public places provided they are not harassing others they have every right to. The same rights the rest of us have.

        If you start taking down monuments like this you simply aid the right. Right now with the 2020 elections not that far out do you really want to inflame half the country at a minimum and alienate religious minded moderates and liberals? Do you really want to give every right winger evidence that liberals are tearing down war memorials?

        Fighting Pyrrhic battles helps nothing whatsoever.

        The Supreme Court did us all on the left a huge favor by ruling against American Humanist with this one.

        Reply
        1. Bruce Gerencser (Post author)

          *sigh* Just because A happens doesn’t mean B necessarily follows.

          Clerics=Congress’s paid chaplains.
          Government sponsored prayer=invocations by only clerics of certain religions, excluding others. My preference is no prayers at government meetings.

          You are putting words in my mouth I didn’t say.

          With that, I’ve said all I intend to say. Thank you for the discussion.

          Bruce

          Reply
          1. Kris

            Yes but there is a good chance B would follow in this case. I am always disappointed when people think somehow saying A does not mean B will follow is somehow a rational response when we have ample reason to think B will follow. For example if you were a Jew in 1944 being put on a train by the Nazis you would be a fool to think it was going anywhere else then a concentration camp even though A doesn’t mean B will follow. Modern day theories of Global Warming work with A then B. Arguing abortion bans will simply result in back alley abortion and dead women is an A then B.

            The religious in this country would be a fool to think if this A happened then American Humanist would be satisfied with just that. We are talking about the same crowd that sued over a Star of David at a Holocaust Memorial for Pete’s Sake.

            https://www.christianpost.com/news/secular-group-threatens-lawsuit-against-ohio-holocaust-memorial-over-star-of-david-symbol.html

            And the World Trade Center Cross https://aclj.org/war-on-terror/world-trade-center-cross-faces-legal-attack

            Really you think these guys have a limit?

            You said

            “If our government represents we the people, then sectarian monuments, symbols, prayers, and clerics, have no place on/in public property.”

            That sentence in no way indicates a paid clergy by the government. You simply said ” clerics, have no place on/in public property.” I responded accordingly.

          2. Bruce Gerencser (Post author)

            I see no reason or evidence for B necessarily following. I am sorry I was not clearer on the cleric line. You seem to be spoiling for an argument. Not going to get it from me. You think it is okay and constitutionally permissible for religious symbols to be placed on public property, I don’t. It’s as simple as that. There’s no way to reconcile these two positions.

            Thanks

            Bruce

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