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HAMMER: Bladensburg Cross Memorial Case Is Supreme Court’s Best Chance To Redeem A Key First Amendment Provision

Captain Henry Lewis Hulbert received the Medal of Honor “for extraordinary heroism” for his bravery in Guam in the 1800s. He also received the Navy Cross and the Croix de Guerre with palm — the latter a French military decoration — during his service in World War I.

John Henry Seaburn left at age 16 to join an all-black World War I regiment fighting in conjunction with the French military. Seaburn wanted to support his mother and escape his abusive father.

Maurice Snyder studied business in Washington before deploying to fight in World War I. He was fatally wounded in combat. “Cpl. Snyder fought gallantly and bravely stood by his post, at which place he rendered the supreme sacrifice,” wrote his commander, Capt. Philip C. McIntyre.

Hulbert, Seaburn, and Snyder are three of the 49 World War I fallen heroes who have been honored by a majestic 40-foot-tall Maryland cross memorial — the “Peace Cross” of Bladensburg — that now stands at the center of this Supreme Court term’s premier First Amendment case. The case, The American Legion v. American Humanist Association, has its oral argument date set for next Wednesday, February 27. Below, a divided panel of the U.S. Court of Appeals for the Fourth Circuit held the Peace Cross memorial to be in violation of the Establishment Clause of the First Amendment. (Disclosure: I serve in an “Of Counsel” capacity with First Liberty Institute, which, in conjunction with Jones Day, represents The American Legion in this case.)

The Peace Cross was erected in 1925, less than a decade after World War I came to its bloody and ultimately indeterminate conclusion, by a local post of The American Legion. The Gold Star mothers who designed the memorial in Maryland chose the cross to recall the shape of the countless crosses dotting the American graves throughout Europe’s Western Front. The inscription on the memorial’s plaque above the names reads, “This Memorial Cross Dedicated To The Heroes of Prince George’s County Who Gave Their Lives In The Great War For The Liberty Of The World.” The words, “Valor,” “Endurance,” “Courage,” and “Devotion” are inscribed, one on each side of the memorial.

It is nothing short of remarkable — indeed, insane — that we have reached the point where such an anodyne military memorial now allegedly threatens to impinge on constitutionally secured liberty.

Let’s start with first principles.

The Establishment Clause of the First Amendment of the U.S. Constitution reads: “Congress shall make no law respecting an establishment of religion.” That is it. Contrary to the revisionism and obfuscation of the ACLU, militant atheists, and secularists run amok, there is no “separation of church and state” provision embedded in the Establishment Clause. Rather, that trite phrase first appeared in an 1802 letter that President Thomas Jefferson wrote to the Danbury Baptist Association — and it was not adopted by the Supreme Court until the deeply flawed 1947 case of Everson v. Board of Education.

Indeed, as the constitutional scholar Philip Hamburger has persuasively argued, the Establishment Clause “say[s] nothing about separation of church and state, and therefore notwithstanding the claims made on behalf of separation, there is reason to believe it is not the religious freedom guaranteed by the Constitution.” Rather, as Hamburger demonstrates through a painstaking look at Founding-era history, the original public meaning of the Establishment Clause was merely that of a federalism provision — wherein the various states could, without the federal government interfering to the contrary, establish their own state religions.

Consider Justice Clarence Thomas’s concurrence from the 2014 Supreme Court case of Greece v. Galloway (internal citations omitted):

Construing the Establishment Clause as a federalism provision accords with the variety of church-state arrangements that existed at the Founding. At least six States had established churches in 1789. New England States like Massachusetts, Connecticut, and New Hampshire maintained local-rule establishments whereby the majority in each town could select the minister and religious denomination (usually Congregationalism, or “Puritanism”). In the South, Maryland, South Carolina, and Georgia eliminated their exclusive Anglican establishments following the American Revolution and adopted general establishments, which permitted taxation in support of all Christian churches (or, as in South Carolina, all Protestant churches). Virginia, by contrast, had recently abolished its official state establishment and ended direct government funding of clergy after a legislative battle led by James Madison. Other States—principally Rhode Island, Pennsylvania, and Delaware, which were founded by religious dissenters—had no history of formal establishments at all, although they still maintained religious tests for office.

Furthermore, as Justice Thomas also posited in Greece, even if one concedes — for the sake of argument — that Everson was correct and that the Establishment Clause is not a purely structural/federalist provision but is also a substantive protection by which the state governments are also bound, “to the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts—not the ‘subtle coercive pressures’ allegedly felt by” the purportedly aggrieved party.

Put another way, even if we concede that state governments are bound by the Establishment Clause, the Establishment Clause does not — properly construed — actually ban all sectarian religious displays in public. Rather, the true test is outright coercion. For example, legislative prayer — a ubiquitous practice at the time of the Founding — was not an Establishment Clause violation, because the option of non-participation was always readily available.

Let’s return to the Peace Cross case. A truly originalist Supreme Court would overturn Everson and return the Establishment Clause to its distinctly federalist structural origins. But what religious liberty advocates really ought to be hoping for is the far more realistic possibility that the Court undermines — or perhaps even overrules — the erroneous 1971 precedent of Lemon v. Kurtzman. In Lemon, the Court held that a three-part test governs for legislation that involves religion: (1) the statute must have a secular purpose, (2) the principal effect of the statute must not advance or hinder religion, and (3) the statute must not result in an “excessive government entanglement” with religion. That the underlying issue here is a physical memorial and not legislation is not a hindrance to the Court’s reconsidering Lemon: As SCOTUSblog notes, the third question presented that the Justices will consider is, “whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.” So Lemon is clearly on the chopping block — the only question is whether the Justices will do any chopping.

The Supreme Court should not miss this opportunity. In what is the most important Establishment Clause case at least since Greece — and quite possibly longer — it is deeply imperative that the Court vindicate Judge Gregory’s dissenting opinion of the Fourth Circuit panel below and uphold the constitutionality of the Peace Cross. After all, Arlington National Cemetery is in Virginia, which is also under the jurisdiction of the Fourth Circuit — and a ruling against the Peace Cross would undoubtedly then be used against the countless mini-cross (and mini-Star of David) memorials throughout Arlington. To claim that granting judges the ability to issue such an injunction would be outside the bounds of what the First Amendment drafters meant would be the understatement of the century.

The Supreme Court is the last chance to preserve the beautiful Peace Cross memorial of Bladensburg, Maryland. Let us hope that the Justices do the right thing — and help uphold the true meaning of the Establishment Clause of the First Amendment, in the process.

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