U.S. Supreme Court to Wade Into Church-State Battle Over Maryland WWI Cross

By Mark Walsh — November 02, 2018 3 min read
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Taking up a case that may have implications for how its church-state rulings are applied in public schools, the U.S. Supreme Court on Friday said it would review a lower-court ruling that a 93-year-old cross on public land that memorializes a Maryland county’s World War I dead is unconstitutional.

The case involves a 40-foot-tall memorial, known as the “Peace Cross,” erected in the median of a three-highway intersection in Bladensburg, Md., by the American Legion to honor 49 men from Prince George’s County, Md., who died during World War I. In 1961, the cross and the land in which it sits was acquired by the Maryland-National Capital Park and Planning Commission, a state entity.

Last year, ruling on a 2012 challenge brought by the American Humanist Association, a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled 2-1 that the cross on public land has the primary effect of endorsing religion and excessively entangles the government in religion.

“The Latin cross is the core symbol of Christianity,” the majority said. “And here, it is 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. Therefore, we hold that the purported war memorial breaches the ‘wall of separation between church and state.’”

The appeals court did not rule on a remedy for the violation, but the humanist group has sought the cross’s removal, while one judge suggested that the “arms” could be cut off to render the statue an obelisk that would no longer violate the Constitution.

The full 4th Circuit voted 8-6 against rehearing the case. Both the American Legion and the Maryland-National Capital park commission appealed to the Supreme Court, joined by friend-of-the-court briefs from some groups that sometimes do battle with the public schools over religious expression, including the Center for Law and Justice and the Thomas More Law Center.

The high court granted review on Nov. 2 after weighing the appeals for several weeks. The cases are American Legion v. American Humanist Association (Case No. 17-1717) and Maryland-National Capital Park and Planning Commission v. American Humanist Association (No. 18-18).

While any display of crosses in public schools probably declined sharply after the Supreme Court’s school prayer decisions of the early 1960s, the new case could be felt in public education if the court decides to issue a broad ruling about its legal tests for analyzing potential violations of the First Amendment’s clause prohibiting government establishment of religion.

The American Legion, in its appeal, says the court’s establishment clause jurisprudence is “in shambles.”

“The courts of appeals disagree even over what test to apply to passive displays that include religious symbols,” the brief says. But under any of the court’s various establishment clause tests, the Bladensburg cross should be upheld, it argues.

The American Humanist Association, in its brief, cites several of the Supreme Court’s school prayer decisions in arguing that the 4th Circuit decision was correct.

“When the power, prestige, and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain,” the group’s brief says, in a direct quote from Engel v. Vitale, the 1962 decision that struck down the official prayer composed by New York state for daily recitation in the public schools.

But the American Center for Law and Justice, in its brief in support of the cross, said “it is difficult to see how passive and symbolic displays create a risk of infringement of religious liberty.”

“Cases involving public school children are inapplicable here,” the brief added.

The two cases granted review will be consolidated, with oral arguments likely early next year.

A version of this news article first appeared in The School Law Blog.