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.
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 The court determines that, over time, the predominant Christian meaning of the Bladensburg Cross has been replaced by one that focuses on the “sacrifice” of American soldiers in World War I.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