BLADENSBURG, MARYLAND - FEBRUARY 28: A 40-foot cross that honors 49 fallen World War I soldiers from Prince George’s County stands at the busy intersection of Bladensberg and Annapolis roads and Baltimore Avenue February 28, 2019 in Bladensburg, Maryland. The cross is at the heart of a Supreme Court case argued by justices Wednesday about whether the symbol runs afoul of the First Amendment’s ban on government establishment of religion by sending a message of favoritism to Christianity. (Photo by Chip Somodevilla/Getty Images)

The Scandal of the Peace Cross: Secularists Take Aim at a Monument

R. Albert Mohler, Jr.
March 1, 2019

Does the simple existence of a large, concrete cross on public land that honors veterans from World War I violate the United States Constitution? The Supreme Court took up that question during the oral arguments of The American Legion v. American Humanist Association. The issues at stake, like the monument itself, loom large over the landscape.

The case centers on the memorial Peace Cross in Bladensburg, Maryland, and it is one of the most important cases to appear before the Supreme Court on religious liberty in a very long time. On the one hand, the issue might seem frivolous—why would anyone dispute a memorial honoring World War I veterans? On the other hand, the case marks the inevitable outcome of an increasingly secular society and a Supreme Court that has offered deeply confusing judgments.

Originally, mothers of soldiers who fell during World War I led the effort to construct the cross in Bladensburg. Later, the American Legion championed the memorial. Then, in the middle of the 20th century, the county took responsibility for maintaining the monument. The cross-shaped memorial features prominently in Bladensburg—hence the dilemma in this secular environment where some have taken offense to the existence of the cross on what is now public land.

Opponents of the memorial view the county’s maintenance of the cross as a violation of the establishment clause of the First Amendment to the United States Constitution and have sought legal action against the cross. This drama has made its way all the way to the Supreme Court, which heard oral arguments on February 27.

What did the oral arguments reveal? Nina Totenberg of NPR reported that “the US Supreme Court appeared ready to let stand a 40-foot cross on public land in Maryland, but the justices struggled to come up with a test to clarify the separation of church and state in this country.”

Indeed, the oral arguments indicated that a majority of the justices believed that the cross, in its current existence on public land, should not be removed. The justices, however, had difficulty articulating judicial reasoning for their apparent position—the ambiguity of their reasoning points to enormous questions regarding our constitutional order and the direction of religious liberty in American public life. This case involves more than a World War I moment; it gravitates around a host of religious liberty issues, especially the public expression of religion in civil spheres. The Supreme Court must rule on the limits of the First Amendment of the Constitution and the intersection of religious freedom with societal order. This is an enormous responsibility entrusted to the Supreme Court.

Regrettably, the Court made a massive mess of these questions over the last few decades. Justice Neil Gorsuch lamentably referred to existing Supreme Court precedence on religious liberty as “a dog’s breakfast.” The Supreme Court has handed down a history of muddied, inconsistent decisions and has done more to obfuscate the constitutional meaning of religious freedom rather than to clarify.

In her NPR report, Nina Totenberg argued that the Supreme Court has the responsibility to “clarify the separation of church and state in this country.” And yet, the phrase “separation of church and state”—is nowhere found in the United States Constitution. She grounded the Court’s duty, not in any constitutional provision, but in a line traceable to a letter by President Thomas Jefferson to the Danbury Baptist Association. Moreover, no branch of government advocating the adage “separation of church and state” has consistently applied that principle in any coherent pattern. Both houses of Congress open every session with prayer; our bills are marked by the printed words, “In God we Trust.” Even the Supreme Court bows to religious traditions and symbols—it begins every session with the declaration, “May God save this honorable court,” and the building features a massive frieze of Moses holding the 10 commandments.

The actual text of the First Amendment to the Constitution does not contain the phrase, “separation of church and state.” Instead, it has two different clauses: one guarantees the free exercise of religion while the other forbids the national government from establishing a state church—no establishment of religion.

With the energies of secularism rising, new challenges emerge against religious liberty—challenges that are unprecedented in American history. A barrage of arguments assail religious liberty as secularists claim that the mere sight of religious symbols violates their sensitivities and therefore must also violate the American Constitution. Moreover, liberal ideology seeks to reconstrue religious liberty, not as a fundamental human right, but a convenient tool of religious classes to justify discrimination.

Adam Liptak, reporting for The New York Times, stated, “The Supreme Court seemed ready on Wednesday to allow a 40-foot cross honoring soldiers who died in World War I to remain in place on public land in Maryland. But the unusually vigorous, and at times heated argument over the issue revealed deep divisions among the justices on the more general question of what role religion may play in public life.”

Liptak encapsulates the larger issue at stake in this case argued before the Supreme Court. He rightly points to the issue of religion’s role in public life as the key dilemma facing the Court’s decision. He continued, “A majority of the justices appeared inclined to rule that the particular cross at issue in the case, which is part of a memorial to 49 fallen soldiers from Prince George’s county, did not run afoul of the Fist Amendment’s ban on government establishment of religion by sending a message of favoritism to Christianity.”

Justices Elena Kagan and Stephen Breyer, two liberal justices on the court, based their allowance of the moment on its age—the memorial caused no controversy in 1925 and the nation had an overwhelming Christian identity during the early part of the 20th century. Yet, that standard has now changed in 2019. Justice Stephen Breyer argued, “No more. We’re a different country. We are a different country now, and there are 50 more different religions.” At one time, a cross-shaped memorial might have been acceptable for America—the times, however, have changed.

The Editorial Board of The Washington Post offered its opinion of yesterday’s oral arguments, stating, “The Latin cross symbolizes Christianity. If Americans today got together to design a new memorial on public space, at public expense, to their fallen soldiers, they would almost certainly not choose this patently sectarian form. The days are long gone when it could be plausibly assumed that all or nearly all of this country’s soldiers are Christian. And so whatever else might be said about the granite and cement Bladensburg Peace Cross, which towers 40 feet above a busy intersection in Prince George’s County, it is not a model for the future.”

Many commentators appear to celebrate the de-Christianization of the American landscape. They argue that America, though once religious, is now secular and that religious symbols represent an antiquated system of values no longer shared by the American people.

The Washington Post noted myriad of contradictions and compromises that have plagued religious liberty cases in the United Stated. Indeed, the constitutional issues at stake, and the muddied precedence complicates the Court’s deliberation and judicial reasoning. The Editorial Board for the Wall Street Journal, however, argued that this case presented a unique opportunity for the Supreme Court to clear out the fog and enshrine a new precedence for future cases on religious liberty. The Wall Street Journal argued, “The Supreme Court on Wednesday will consider whether a 93-year-old cross-shaped war memorial on public land violates the Constitutional prohibition on government establishment of religion. The specific case is an easy call, but the Justices also have an opportunity to clear up their messy Establishment Clause jurisprudence.”

A 1971 case known as Lemon v. Kurtzman serves as the source of the legal mess lamented by the Wall Street Journal. In that case, the majority opinion of the court handed down the infamous “Lemon Test.”

The “Lemon Test” has three different probes into issues of religious liberty. First, if a law is constitutional, it must have an essentially secular purpose. Second, the principle effect must neither advance nor inhibit any religion. Finally, a constitutional law must not foster excessive interference between government and religion.

This test is itself a mess, with dubious, subjective, and ambiguous qualifications. It can lead to inconsistent jurisprudence because one judge utilizes the test differently than another judge. The Wall Street Journal has called upon the court to do away with the “Lemon Test,” and develop a new standard for cases of religious liberty—one that will clear the mists of confusion and jurisprudence.

The Constitutional issues at stake in this case cannot be overstated. The implications of the Court’s decision will send shockwaves throughout the nation. If the court rules the memorial as unconstitutional, it inevitably calls into question the thousands of crosses, which mark the graves of America’s soldiers at Arlington National Cemetery. Monument by monument, town by town—the entire public landscape of America will undergo a massive cleansing.

Behind this case lies the simmering hostility of secularists against Christianity. The secular tides of modernity seek to erode the idea of Christian involvement in the public square. Christian symbols, prayers, and monuments stand in the crosshairs of the secular elites.

Christians, however, must guard against another argument made in this case. Some argue that the cross-shaped monument in no way violates the Constitution because it is not an inherently Christian symbol. Christians run the danger of agreeing with that sentiment in order to protect the existence of other cross-shaped monuments.

The cross, however, bears tremendous weight as a symbol. It stands as nothing less than the symbol of Jesus Christ crucified—the sign of the Son of God who died as a propitiatory sacrifice and atonement for sinners. To state anything less empties the cross of its inherent theological message as a symbol of the Christian faith.

The secular onslaught must not be met with Christians jettisoning the glory and weight of its symbols. There is no victory for religious liberty if Christians simply reduce the cross to a secular symbol with no theological, doctrinal, or historical meaning. If the cross is only a secular symbol, then there is no threat to religious liberty.

Christians must understand that, notwithstanding the importance of religious liberty, we dare not surrender theological fidelity for civilly protected rights. Our ultimate concern is not for religious freedom, but for the message, meaning, and power of the cross of Jesus Christ.

R. Albert Mohler, Jr.

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