Can Religious Symbols Be Tolerated on Public Lands?

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By Thomas Ascik, Crisis Magazine, Oct. 27, 2017

Is a long-standing commemorative cross on public land socially divisive and a governmental endorsement of religion? Or, to the contrary, is a constitutional challenge to that cross an act of gratuitous social divisiveness?

Last week, in American Humanist Association v. Maryland, the federal Fourth Circuit Court of Appeals reversed a ruling of the federal district court of Maryland and held that a cross on state-owned land violated the Constitution. The state of Maryland was joined in its defense of the cross by twenty-five other states.

The forty-foot-tall stone cross known as the Bladensburg Memorial, located just outside Washington, D.C. at a busy highway intersection in Bladensburg, Maryland, was erected in 1925, that is, 93 years ago, as part of a commemoration of Americans killed in World War I. The cross stands at Veterans Memorial Park, which is land owned by the state of Maryland’s Roads Commission. The district court observed that the Memorial “was constructed and financed by the American Legion and a private group of citizens whose purpose was to remember and honor Prince George’s County’s fallen soldiers” and has been used “almost exclusively as a site to commemorate veterans on secular patriotic holidays for its entire history.” There had been no allegations, the district court observed, that any “rabbis, imans, or non-theists” had ever been excluded from using the Memorial “for their own purposes.” After the case was filed in the district court, the National Park Service placed the Memorial on the National Register of Historic Places.

The three plaintiffs, all formally affiliated with or employees of the American Humanist Association or its sister organizations, alleged “unwelcome direct contact with the Cross.” They have “regularly encountered” and been “offended” by the Cross while driving their cars, and this has resulted in “their injury.” They “wish to have no further contact” with the Cross. Likewise, the American Humanist Association has local “members” who have faced “unwelcome contact with the Cross.”

The Supreme Court’s decisions on “public displays” of religion have not been as categorical as its decisions on, for instance, school prayer. In Lynch v. Donnelly (1984), the Court by the slimmest of margins, 5-4, upheld the display of a nativity scene on property owned by a city. The Court stated that the Constitution “mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any” and went on to say that “[a]nything less would require the ‘callous indifference’ we have never intended by the Establishment Clause.” The Court mentioned the 40-year history of the public Christmas celebration by the city.

In McCreary v. ACLU (2005), a Kentucky town posted the Ten Commandments in its courthouse in 1999, then, after being sued, additionally posted various historical religious and secular documents, including the Magna Carta and the Bill of Rights. The Supreme Court held that the town had a clear religious purpose in posting the Commandments and that the display of the other documents was essentially window-dressing and an attempt to cover over that purpose.

In the Bladensburg Memorial case under consideration here, both the district and the appeals court referred to the Supreme Court’s decision in Lemon v. Kurtzman (1971), in which the Court established a three-prong test for deciding whether religion has been established, namely, a secular purpose, a neutral primary effect, and no excessive entanglement of government and religion. The district court (with the dissenting judge in appeals court in substantial agreement) decided that even though the Latin cross is an obvious religious symbol, the purpose of the memorial was to commemorate those killed in the First World War. The court said that “nothing in the record indicates that the [Roads] Commission’s maintenance and display of the Monument is driven by a religious purpose whatsoever.” Likewise, the court held that a war memorial that includes both religious and secular components did not have “the effect of impermissibly endorsing religion.” And there was no excessive entanglement of religion and government because the “secular” and “commemorative” memorial was “not a governmental endorsement of religion.”

Pointedly calling the memorial “the Cross” rather than “the Memorial,” the federal appeals court contradicted the district court on the last two prongs. On the first prong, secular purpose, the appeals court conceded that the Roads Commission had “articulated legitimate secular purposes for displaying and maintaining the Cross.” Although the Cross has “a few secular elements,” the court found that the “immense size” of the Cross and its conspicuousness at a busy intersection meant that the Cross had “the primary effect of endorsing religion.” And, thus, with respect to the third prong, there was excessive entanglement because the Roads Commission owns and spends public funds to maintain the Cross and because the Cross “places Christianity above other faiths” because of its size and the way it “dominates its surroundings.”

In addition to the three-prong analysis required by the Lemon case, the 2005 case of Van Orden v. Perry was decisive in consideration of the constitutionality of the Bladensburg Memorial. In Van Orden, a divided Supreme Court upheld the forty-year-old display of the Ten Commandments on the Texas state capitol grounds. In Justice Rehnquist’s opinion for the Court rejecting an Establishment claim, stated that the forty-year-old six-foot-tall display of the Ten Commandments was “passive” and was part of the state of Texas’ attempt to “represent” the several strands in the State’s political and legal history and had “a dual significance, partaking of both religion and government.” In supporting the retention of the Bladensburg Memorial, the district court cited Van Orden as controlling its decision.

With the Court split 4-4, the deciding vote in Van Orden was cast by Justice Breyer who also wrote a concurring opinion. The Fourth Circuit, in disagreeing with the district court about the cross, cited Justice Breyer’s opinion to the effect that Breyer said in his opinion that each Establishment case must be decided on its own facts. But curiously, the Fourth Circuit avoided addressing a principle that Breyer developed with emphasis and at length.  Breyer held that the “basic purposes” of the two religion clauses of the First Amendment were “to avoid that divisiveness based upon religion that promotes social conflict.” He said that “as a practical matter of degree” the continued display of the Ten Commandments on the capitol grounds was “unlikely to prove divisive.” And, the ordered removal by federal courts of “long standing depictions” of the Ten Commandments could “create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”

Overall, a total of four federal judges at two levels of the federal judiciary issued opinions about the cross and were even split for and against. Two of the judges thought that the history of the cross mattered and two did not. As discussed above, two Supreme Court cases had recognized the significance of separate 40-year histories of public religious symbols, but in this case, two judges thought that 90 years was not significant. Here, two judges thought that the cross on public land was an endorsement of religion, and two did not. From this case, one might think that constitutional law is just a matter of mutually exclusive opinions or attitudes.

The appeals court made a point of discussing the public cost of maintaining the cross. Maryland acquired the land on which the cross stands in 1961, and since that time has spent a total of $117,000 of public money “to maintain and repair the cross.” The Court did not shy away from highlighting that this average annual public expenditure of around $2,000 per year, together with an additional $100,000 that has been set aside for restoration, was not “de minimis.” And in its conclusion, the Court stressed that not only the display but also “the maintenance of the Cross violates the Establishment Clause.” Such a conclusion, if upheld on appeal by the Supreme Court, could be used to attack every cross or other religions symbol of any kind on any public land, including Arlington Cemetery, for instance.

Finally, as recounted above, the feelings or at least the sensibilities of the humanist plaintiffs are considered relevant by the Fourth Circuit. The coercive act of government causing them to view the “unwelcome” cross “offends” them and has caused them “injury.” One is put in mind of so-called second wave feminism which contributed the notion to American politics that “the personal is the political.” Similarly, in Obergefell (2015), the same-sex “marriage” case, Justice Kennedy, writing for the Court, remarks that the denial of marriage to two of the plaintiffs was “hurtful” and that people who cannot enter into same-sex “marriages” are “condemned to live in loneliness.” Nowadays, the personal is also the legal and the constitutional.