Atheists and humanists keep taking shots at crosses on public property. We know they don’t like them. Of course atheists don’t like crosses. But how can they justify trying to take down revered monuments that have stood for a hundred years? By — I know you saw this coming — claiming they violate the constitutional separation of church and state.

The latest victim of this rage for denuding the public square of any religious symbol? A 40-foot tall cross that has stood in Bladensburg, Maryland, for almost 100 years as a memorial to soldiers killed in World War I. It’s now the subject of American Legion v. American Humanist Association.

This case means more than the usual one, because it’s made its way all the way up to the Supreme Court. Whatever the court decides will affect many other monuments. It will show whether atheists might succeed in their challenges, or fail. Oral arguments are scheduled today.

The ‘Peace Cross’

The Bladensburg Memorial, known as a “Peace Cross,” was originally built in 1925, on private land using private funds. It’s not a cross because its builders wanted to make a religious statement. Mothers of the soldiers who lost their lives designed it to look like the cross-shaped grave markers standing over their son’s graves on the Western Front. A plaque on the base lists the names of 49 soldiers from the area who died.

And it’s not on public land because the local government wanted to make a religious statement. Ninety years after the cross was erected, the government annexed land. Ironically, it was taken to build a WWI memorial highway. That’s why it now stands on public land and is maintained by taxpayer funds. By accident.

But those facts don’t matter to the atheists. In 2014, the American Humanist Association filed a suit to remove the memorial because it is in the shape of a cross. They called it “offensive.” The U.S. Court of Appeals for the Fourth Circuit sided with the group in 2017. First Liberty, representing the American Legion in the case, appealed to the Supreme Court.

The Supreme Court has ruled on similar cases in the past involving Ten Commandments displays. The court uses the “Lemon Test,” which gets its name from the court’s 1971 decision Lemon v. Kurtzman. The test asks whether government is trying to promote religion or advance a primarily nonreligious purpose. Is the government unconstitutionally establishing a religion? It finds the answer by asking three questions. Does the state action has a secular purpose? Does it advance or inhibit religion? And does it foster “an excessive government entanglement with religion”?

Coercion v. Endorsement

The American Legion argues in its brief that the standard the court should look at is whether the government is trying to force religion on people. The First Amendment’s Establishment Clause “prohibits religious coercion, not mere endorsement.” In other words, the Constitution lets a community say “This is good” using a religious symbol. The symbol could just as easily be Jewish or Islamic or Hindu. It can’t force people to agree. 

The Legion’s brief observes that endorsement is not the same thing as establishment. The Founding Fathers rejected the establishment of religion. Some of them engaged in endorsement of religion. (Here’s a description of the states that maintained established churches long after the Constitution became the law of the land.)

The American Humanist Association disagrees, of course. It contends that the standard should whether the government in any way endorses religion. What do they think “endorsement” means? The AHA holds that any toleration of a religious symbol amounts to endorsing the religion. A cross erected not as a cross, but to imitate grave markers, that’s only accidentally now on public property? Yes. Endorsement.

The Justices

No one can be sure how the court will rule. The conservative justices tend to be more open to religious symbols. The liberal justices tend to more critical. But much of how justices rule on these cases depends on how they read the facts, as well as how they understand precedent.

Take Justice Steven Breyer, one of the four liberals on the court, for example. He was the deciding vote in a case holding that a Ten Commandments display on the grounds of the Texas state capitol had a primarily nonreligious purpose.

However, in another case he was the deciding vote in ruling the opposite. There, the court found that the Ten Commandments located in Kentucky courthouses violated the Establishment Clause.

Bulldozing Memories

“For nearly 100 years the families of these 49 sons of Prince George’s County have considered the Bladensburg Veterans Memorial their sons’ gravestone,” First Liberty’s president Kelly Shackelford said in a press release. “We cannot allow their memory to be bulldozed.”

Many of the WWI soldiers’ graves are overseas, where their relatives can’t easily visit them. “Because these soldiers died too young to leave children of their own, amici, their nieces and nephew, seek to preserve their legacies,” the descendents’ attorneys point out.

A nationwide poll found that 84 percent of respondents think the memorial should stand. Only 2 percent thought it should be taken down.

Bladensburg isn’t far from Arlington Cemetery. If SCOTUS rules that the peace cross must be removed, what will happen to all the crosses there?

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