On June 20, the US Supreme Court ruled 7-2, in American Legion v. American Humanist Association that a historic Latin cross, erected on public land 100 years ago to memorialize 49 fallen World War I soldiers, could stand. The Supreme Court got it exactly right.
To some, the ruling is common sense – no violation of the First Amendment’s “Establishment Clause,” which bars creating a federal religion. To others it appears to vindicate “free exercise” of community’s faith. The Supreme Court, however, took a narrower – and more complex – view.
The majority was a jigsaw puzzle, nuanced concurrences set off by two dissents. What matters for protection of future religious monuments, symbols and practices is the Court’s reasoning.
Given the combination of overlapping legal reasons for preserving the Bladensburg Cross, each one compelling, a summary will miss some nuance. That said, the majority – delivered by Justice Alito – offers a concise basis for celebrating the power of our First Amendment. The opinion is succinct.
In sum, the majority explained that Bladensburg Cross does not violate the Establishment Clause for a variety – an interrelated constellation – of reasons.
First, finding original purposes for monuments erected “long ago” is just plain difficult. The mists of time lead to guessing, conjecture and unknowing; original purposes are forever opaque.
Second, as time passes, purposes associated with any “monument, symbol or practice often multiply.” The Court noted a 2005 case. That case allowed a “Ten Commandments monument,” as an exhibit “meant to focus upon the historic role of religious belief in our national life – which is entirely permissible.” That majority, McCreary County v. ACLU, was written by centrist Justice Souter.
Justice Alito then adds, “if the monuments original purpose was infused with religion, the passage of time may obscure that sentiment and the monument may be retained for the sake of historical significance or it place in a common cultural heritage.”
Third, “the message of a monument, symbol or practice may evolve.” The Court cites cases and examples, including “a city name like Bethlehem, Pennsylvania; Arizona’s motto ‘Ditat Deus” (“God enriches), adopted in 1864; or Maryland’s flag which has included two crosses since 1904.” Like other forms of predictability, even stare decisis, “familiarity itself can become a reason for preservation.”
Fourth, “when time’s passage imbues a religiously expressive monument … with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community; passage of time gives rise to a strong presumption of constitutionality.” Exactly, since removal could just as easily connote official hostility to religion.
Next: “The cross is closely linked to World War I,” as “the United States adopted it as part of its military honors, establishing the Distinguished Service Cross and Navy Cross in 1918 and 1919, respectively.” More, “fallen soldiers’ resting places abroad were marked by white crosses or Stars of David, a solemn image that became inextricably linked with and symbolic of the ultimate price paid by 116,000 soldiers.” Other prudential reasons are cited, including retaining names like Los Angeles and San Diego, not to mention the actual faith of those commemorated, such as in memorials to Martin Luther King.
Next: Justice Alito notes crosses originally marked all World War I graves in Europe, as a symbol of profound sacrifice. The Bladensburg cross’s design “must be understood in light of that background.” That the cross is a “Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials.” It represents “sacrifice” by our “predecessors,” a meaning now “part of the community.”
How true. Beyond sacrifice, a religious symbol may have other meanings, and often does. A star with five or six points may be secular or religious (Christian or Jewish), as a crescent moon (patriotic in South Carolina’s flag, Ottoman Empire and Islam), ship’s wheel or lotus flower (both secular and Buddhist). Moreover, the Court finds no evidence of prejudice associated with this monument.
Most powerfully, the Court reminds us to spin down, slow down and think about history – honoring the good in our past. “The fact that the cross is undoubtedly a Christian symbol should not blind one to everything else that the Bladensburg Cross has come to represent: a symbolic resting place for ancestors who never returned home, a place for the community to gather and honor all veterans and their sacrifices for this nation, and a historical landmark.”
In due course, other Justices offer reference to the so-called “Lemon test,” a “grand unified theory of the Establishment Clause,” prohibiting entanglement with religion. The test is often minimized, criticized and ignored, but even here, it presents no obstacle to the Bladensburg Cross.
Finally, Justice Thomas articulates a further argument and others embroider artfully, but the holding is essentially this: “Where monuments, symbols, and practices with a longstanding history follow in the tradition of the First Congress in respecting and tolerating different views, endeavoring to achieve inclusivity and nondiscrimination, and recognizing the important role religion plays in the lives of many Americans, they are likewise constitutional.”
What strikes an average reader of this seminal case is pithy: America’s history matters. Our history is tied up in faith, which many still believe today got us to where we are.
To erase that history, to disparage, demean, rewrite or take down monuments, symbols or practices which are at the foundation of our nation is to miss the forest for a tree, the landscape of our nation’s extraordinary life, inextricably tied to faith and sacrifice. In a nutshell, the Supreme Court got it right.