Supreme Court rules government-maintained cross doesn't violate Constitution

The Supreme Court ruled Thursday that a 40-foot-high, government-maintained Christian cross in the Maryland suburbs does not violate the Constitution because it was erected nearly a century ago as a memorial to soldiers lost in World War I.

The court voted, 7-2, to reject the challenge to the Peace Cross in Bladensburg, but the dispute splintered the justices, with many taking different routes to reach the same result.

However, the outcome of the fight is an indication of the hostile reception advocates of strict church-state separation can expect from the increasingly conservative Supreme Court bench.

Only the court’s two most stalwart liberals, Justices Ruth Bader Ginsburg and Sonia Sotomayor, dissented, concluding that a Maryland commission’s maintenance of the cross on public land offended the First Amendment’s ban on establishment of religion.

Justice Samuel Alito wrote the lead opinion in the cross cases, joined by a majority of the justices on many — but not all — points.

“For nearly a century, the Bladensburg Cross has expressed the community’s grief at the loss of the young men who perished, its thanks for their sacrifice, and its dedication to the ideals for which they fought,” Alito wrote.

“It has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of ‘a hostility toward religion that has no place in our Establishment Clause traditions,’” Alito added, quoting from Justice Stephen Breyer’s opinion in a 2005 case upholding a Ten Commandments memorial on the grounds of the Texas Capitol.

Alito was particularly aghast that the memorial’s critics proposed “amputating the arms of the cross,” which was erected by private citizens in 1925 and later transferred to a state commission. He argued that requiring the Maryland monument to be torn down or altered could lead to a Taliban-style campaign where all kinds of religious references were erased from parks and historical sites across the nation.

“Many memorials for Dr. Martin Luther King, Jr., make reference to his faith,” Alito wrote. “These monuments honor men and women who have played an important role in the history of our country, and where religious symbols are included in the monuments, their presence acknowledges the centrality of faith to those whose lives are commemorated.”

Alito, an appointee of President George W. Bush, also argued that whatever the original religious meaning of the cross, it has come to occupy a place in the history of America’s wars abroad. Alito’s opinion even quotes from John McCrae’s famous poem about World War I dead: “In Flanders fields the poppies blow. Between the crosses, row on row.”

In dissent, Ginsburg argued that Alito’s references to the sea of crosses and Stars of David in military cemeteries missed the point.

“Precisely because the cross symbolizes…sectarian beliefs, it is a common marker for the graves of Christian soldiers,” wrote Ginsburg, with Sotomayor signing on. “Just as a Star of David is not suitable to honor Christians who died serving their country, so a cross is not suitable to honor those of other faiths who died defending their nation. Soldiers of all faiths ‘are united by their love of country, but they are not united by the cross….’ By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion.”

Ginsburg included in her dissent footnotes quoting arguments that the Christian cross has been “a symbol of persecution” to some non-Christians during various periods in history and can symbolize “a threat of damnation” to those of other religions or without religious belief.

Ginsburg suggested Alito was overly inflammatory by implying that the only potential solution was that the cross be “torn down.” Another option was a transfer of the memorial to private hands, she noted.

Among the court’s liberals, Breyer fell most in line with the court’s conservatives Thursday — perhaps no surprise given his conclusion in the Texas case. In a concurring opinion on the Maryland cross, he emphasized that a similar monument erected today might still be legitimately challenged as violating the Establishment Clause.

“The case would be different, in my view, if there were evidence that the organizers had ‘deliberately disrespected’ members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I,” Breyer wrote. “But those are not the circumstances presented to us here, and I see no reason to order this cross torn down simply because other crosses would raise constitutional concerns….In light of all the circumstances here, I agree with the Court that the Peace Cross poses no real threat to the values that the Establishment Clause serves.”

Justice Elena Kagan agreed, but sounded more wary of sweeping pronouncements about what rule should apply in future cases. She opted out of a part of Alito’s ruling that Breyer joined that called for a “presumption of constitutionality for longstanding monuments, symbols, and practices.”

“Although I too ‘look[ ] to history for guidance…’ I prefer at least for now to do so case-by-case, rather than to sign on to any broader statements about history’s role in Establishment Clause analysis,” Kagan wrote. “

Justices Clarence Thomas and Neil Gorsuch also ruled against the cross’s challengers, but on other grounds that would have avoided the court diving into the details of the church-and-state fight. Thomas stood by his longstanding view that the Establishment Clause doesn’t apply to state and local governments or their offshoots, like the Maryland commission that maintains the memorial.

And Gorsuch said the court should have turned the case aside because those who brought suits over the cross could show no more concrete injury than that they were “offended” by seeing the monument as they pass it.

“This ‘offended observer’ theory of standing has no basis in law,” Gorsuch wrote, in an opinion Thomas also joined.

Gorsuch also expressed doubts that the exemption many of his colleagues wanted to bestow on the Maryland cross because of its age would prove to be workable.

“It’s hard not to wonder: How old must a monument, symbol, or practice be to qualify for this new presumption? It seems 94 years is enough, but what about the Star of David monument erected in South Carolina in 2001 to commemorate victims of the Holocaust, or the cross that marines in California placed in 2004 to honor their comrades who fell during the War on Terror?”

“What matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles. The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago,” he added.