Bladensburg ‘Peace Cross’ Seems Likely to Remain Standing

The U.S. Supreme Court has held oral argument in a case involving a 40-foot tall Latin cross displayed and maintained on public property in Bladensburg, Maryland. Although it can be difficult to predict how the Court ultimately will rule, it appears that a majority of the justices will vote to allow the so-called “Peace Cross” to remain as it is and where it is.

The Case
Over a century ago, in 1918, a number of individuals from Prince George’s County, Maryland, started raising money to construct a giant cross, in addition to a previously established plaque, to honor 49 World War I soldiers from the county. The private organizers required each donor to sign a pledge sheet recognizing the existence of one god. It stated:

WE, THE CITIZENS OF MARYLAND, TRUSTING IN GOD, THE SUPREME
RULER OF THE UNIVERSE, PLEDGE FAITH IN OUR BROTHERS WHO GAVE
THEIR ALL IN THE WORLD WAR TO MAKE THE WORLD SAFE FOR
DEMOCRACY. THEIR MORTAL BODIES HAVE TURNED TO DUST, BUT THEIR
SPIRIT LIVES TO GUIDE US THROUGH LIFE IN THE WAY OF GODLINESS,
JUSTICE, AND LIBERTY.

WITH OUR MOTTO, “ONE GOD, ONE COUNTRY AND ONE FLAG,” WE
CONTRIBUTE TO THIS MEMORIAL CROSS COMMEMORATING THE MEMORY
OF THOSE WHO HAVE NOT DIED IN VAIN.

The private organizers held a groundbreaking ceremony on September 28, 1919, at which
time the city of Bladensburg owned the land.

In 1922, the private organizers ran out of money and could not finish the project. The
Snyder-Farmer Post of the American Legion assumed responsibility and ultimately completed
the monument in 1925.

Upon completion, the monument stood four stories tall in the shape of a Latin cross (the
“Peace Cross”) located in the median of a three-way highway intersection in Bladensburg,
Maryland.

On March 1, 1961, the Maryland-National Capital Park and Planning Commission, a
state entity, obtained title to the cross and the land on which it is located. The commission has
said that it assumed responsibility to “maintain[ ], repair[ ], and otherwise car[e] for” the Peace
Cross. It has spent approximately $117,000 to maintain and repair it and, in 2008, it set aside an
additional $100,000 for renovations.

Today, the Peace Cross is situated on a traffic island taking up one-third of an acre at the
intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg. The American Legion’s
symbol – a small star inscribed with “U.S.” – is affixed near the top of the Peace Cross, and an
American flag flies in the vicinity of the Peace Cross. The Peace Cross sits on a rectangular base,
one side of which contains a two-foot tall, nine-foot wide plaque listing the names of the 49
soldiers from Prince George’s County memorialized by the Peace Cross, followed by a quote by
President Woodrow Wilson, stating, “The right is more precious than peace. We shall fight for
the things we have always carried nearest our hearts. To such a task we dedicate our lives.”
Three non-Christian residents of Prince George’s County and the American Humanist
Association (“AHA”), a nonprofit organization that advocates to uphold the founding principle

of separation of church and state, sued the commission under 42 U.S.C. § 1983, alleging that its
display and maintenance of the Peace Cross violated the First Amendment’s Establishment
Clause.

The District Court’s Decision
A federal district court in Maryland ruled in favor of the defendants, analyzing the plaintiffs’ claims under the U.S. Supreme Court decision of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (and, alternatively, under Van Orden v. Perry, 545
U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005)). The district court held that the commission owned the Peace Cross and land for a legitimate secular reason, that is, to maintain the highway median. The district court also identified a second secular purpose, which was to commemorate
the 49 World War I soldiers from Prince George’s County. 

The district court next determined that the Peace Cross neither advanced nor inhibited religion because (1) the Peace Cross has been primarily used for veterans’ events; (2) crosses generally were regarded as commemorative symbols for World War I, at least overseas; (3)
secular war memorials surrounded the Peace Cross; and (4) the Peace Cross had secular attributes, such as the Legion symbol on the face of the Peace Cross.

Finally, the district court concluded that the commission’s display and maintenance of the Peace Cross did not amount to excessive entanglement with religion because the Peace Cross was not a governmental endorsement of religion. At bottom, the district court viewed the
commission’s maintenance of the Peace Cross as relating to traffic safety and veteran commemoration rather than religion.

The plaintiffs appealed to the Fourth Circuit.

The Fourth Circuit’s Decision
The Fourth Circuit reversed.
In its decision, the circuit court reasoned that the Peace Cross had the “primary effect of endorsing religion” and that it “excessively entangle[d] the government in religion.”The circuit court pointed out that the Latin cross was the “core symbol of Christianity”and that here it was “40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds.”

Citing to the U.S. Supreme Court’s decision in Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947), the Fourth Circuit held that the “purported war memorial” breached the “wall of separation between Church and State.”

The dispute reached the U.S. Supreme Court, where it attracted a great deal of attention.

Amicus curiae (“friend of the court”) briefs were filed by organizations ranging from the American Center for Law & Justice, The Becket Fund for Religious Liberty, the Jewish Coalition for Religious Liberty, and The Islam and Religious Freedom Action Team of the Religious Freedom Institute to the International Municipal Lawyers Association, the Foundation for Moral Law, The Rutherford Institute, and Veterans in Defense of Liberty.

Oral Argument in the Supreme Court
Oral argument was held in the Supreme Court on February 27. Neal K. Katyal, Michael A. Carvin, Jeffrey B. Wall, and Monica L. Miller argued the case before the Supreme Court. (A transcript of the oral argument is available on the U.S. Supreme Court’s website, at
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-1717_7l48.pdf).
Mr. Katyal began, contending that there were “four important facts about the memorial at issue, the Peace Cross, that explain why it should not be dismembered or destroyed.

“First, families and the Legion built it 93 years ago to commemorate 49 brave souls who gave their lives in World War I, and it has stood for – since that time without challenge. “Second, it’s no ordinary cross. At its center, in its heart, is the American Legion symbol.
It’s gigantic. And at the base in four capital – huge capital letters are words: Valor, Endurance, Courage, Devotion.

“Third, not a single word of religious content appears anywhere; rather, the base has a nine-foot plaque listing the 49 names with an inscription to them. “And, fourth, the monument is situated in Veterans Memorial Park alongside other war
memorials.”

At that point, Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg began to pepper Mr. Katyal with questions. Various justices continued to ask questions of Mr. Katyal and the other lawyers arguing their case.

When the attorney for the plaintiffs, Ms. Miller, had her turn, she began by stating, “I think we can all agree that the Establishment Clause at the very least prohibits the government from preferring one religion over another religion.

“And the commission is arguing essentially that its cross does not violate the central command of the Establishment Clause because it’s essentially a non-religious, non-Christian symbol that honors everyone, irrespective of their religion.

“Yet, I don’t think anyone here would deny that it would be unconstitutional and inappropriate to go into Arlington and place a Latin cross over the grave of every person there, every fallen soldier, irrespective of their religion.” Interestingly, neither Mr. Katyal nor Ms. Miller suggested that the Supreme Court should reject its Lemon test, although Justices Brett Kavanaugh and Neil Gorsuch seemed willing to do
so.

The bottom line from oral argument in this case is that there seemed to be a majority of the Court willing to allow the Peace Cross to remain, with commentators in The New York Times, Washington Post, and Wall Street Journal and SCOTUSblog all suggesting the same thing.

Stay tuned.

Learn more:
“Supreme Court Seems Ready to Allow Cross Honoring War Dead,” available at

“Supreme Court seems to seek narrow way to uphold cross that memorializes war dead,”
available at https://www.washingtonpost.com/politics/courts_law/supreme-court-balances-history-and-religion-in-deciding-monuments-fate/2019/02/26/24688222-3a0e-11e9-a2cd-307b06d0257b_story.html?utm_term=.8813f43f6684

“High Court Hears Case of Memorial Cross at Traffic Circle,” available at
https://www.wsj.com/articles/high-court-hears-case-of-memorial-cross-at-traffic-circle-11551310646mod=searchresults&page=1&pos=1

“Argument analysis: Peace cross appears safe, if not stable,” available at

Argument analysis: Peace cross appears safe, if not stable

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