Symposium: The establishment clause strictly prohibits government preference for one faith — That could change with the Bladensburg Cross case

Heather L. Weaver is a senior staff attorney for the Program on Freedom of Religion and Belief at the American Civil Liberties Union.

A 40-foot-tall Latin cross made of marble and cement stands on public property at one of the busiest intersections in Bladensburg, Maryland. The Bladensburg Cross is impossible to miss and overshadows everything nearby. Erected as a memorial to soldiers who died in World War I, it is now owned and maintained by a state entity, the Maryland-National Capital Parks and Planning Commission. Last month, the Supreme Court agreed to decide whether the cross display violates the establishment clause of the First Amendment to the U.S. Constitution.

It should be a no-brainer.

According to the Supreme Court, the “clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” And, as the U.S. Court of Appeals for the 4th Circuit highlighted in holding the display unconstitutional, the “Latin cross is the core symbol of Christianity.” Writing on behalf of Muslim American veterans in opposition to a different cross display, Professor Douglas Laycock put it more starkly (and colorfully): “If government can sponsor a Christian cross and deny that it has done anything religious, then words and symbols have no meaning and the Court has consigned the Establishment Clause to the world of Alice in Wonderland.”

But that is exactly what could happen in the Bladensburg Cross case. Petitioners and their supporting amici have argued that the cross display is secular and that the cross — despite being the foremost symbol of Christianity — represents the sacrifice of all fallen soldiers, regardless of their faith. This argument dismisses the religious beliefs of non-Christian service members, who reasonably understand the cross to be a Christian emblem that is not representative of their religion or other belief system. And, as the Baptist Joint Committee has observed, it debases the Latin cross as a religious symbol by stripping it of its uniquely Christian meaning.

Nevertheless, the effort to rebrand the Latin cross as a secular icon has appealed to some Supreme Court justices. The Supreme Court has never been directly presented with the question whether a cross displayed by the government runs afoul of the separation of church and state. Just over nine years ago, however, the court heard oral argument in Salazar v. Buono, a case involving a different display of a Latin cross on government property, the federally owned Mojave National Preserve in California. (The ACLU represented the plaintiff-respondent Frank Buono.)

Like the Bladensburg Cross, the Mojave Cross was erected as a memorial to service members who died in World War I. And, like the 4th Circuit, the U.S. Court of Appeals for the 9th Circuit emphasized that the Latin cross “is the preeminent symbol of Christianity” — indeed, it is “exclusively a Christian symbol” — in ruling that the display violated the establishment clause. “Whatever the Establishment Clause may mean,” Judge Alex Kozinski wrote, “it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions).”

By the time the Buono case wound its way to the Supreme Court in 2009, whether the government could display the Mojave Cross on public land was not at issue because the government never appealed the 9th Circuit’s ruling that the monument violated the establishment clause. Instead, the question before the Supreme Court centered on the constitutionality of a federal statute authorizing the land on which the Mojave Cross stood to be transferred to a private organization in exchange for another parcel of property.

The Buono Court, thus, had no occasion to judge the constitutional propriety of the Mojave Cross display, although that did not stop Justice Antonin Scalia from questioning the respondents’ counsel about the cross’s meaning during oral argument. Pouncing on a comment that the Mojave Cross honored only Christians, rather than all Americans who died fighting in World War I, Scalia demanded to know why the cross did not also represent non-Christians. Counsel explained that “the cross is the preeminent symbol of Christianity and it signifies that Jesus is the son of God, and died to redeem mankind for our sins,” but Scalia was unpersuaded. He countered that “the cross is the most common symbol of … the resting place of the dead” and challenged the respondent’s attorney to identify a design that would have honored all World War I veterans — “a cross, some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?”

In response, ACLU attorney Peter Eliasberg gently corrected Scalia by clarifying that “the cross is the most common symbol of the resting place of Christians,” adding, “I have been in Jewish cemeteries. There is never a cross on the tombstone of a Jew.” Still, Scalia would not let the matter rest, declaring it “outrageous” to conclude that “the only war dead that [the Mojave] cross honors are the Christian war dead.”

When the Supreme Court handed down its highly fractured decision in Buono months later, many religious-liberty advocates were disturbed to learn that Justice Anthony Kennedy had gone out of his way to include similar dicta in his opinion. Kennedy maintained that “a Latin cross is not merely a reaffirmation of Christian beliefs” but “a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people.” The Mojave display, he opined, “evoke[d] thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”

In fact, the Latin cross has not become a universal, secular symbol of fallen heroes or self-sacrifice. The “foreign fields” of crosses mentioned by Kennedy commemorate individual soldiers who have died fighting abroad, and those cemetery fields include religious symbols other than crosses. As Justice Samuel Alito noted in his concurring opinion in Buono, during World War I, “[m]ore than 3,500 Jewish soldiers … gave their lives for the United States.” Their sacrifices were marked in our cemeteries abroad by stars of David, not by crosses.

A century later, the U.S. Department of Veterans Affairs allows service members to choose from 70 “emblems of belief” for their headstones. In addition to various crosses, the options include the Jewish star of David, the Baha’i nine-pointed star, the Muslim crescent and star, the Druid awen, the Sikh khanda, the atheist atomic whirl, the Buddhist wheel of righteousness, several Native American religious symbols, and (after the ACLU filed suit to secure its addition to the list or approved iconography) the Wiccan pentacle.

These symbols, not the cross, are emblazoned on the headstones of non-Christian soldiers in military cemeteries across the nation. And rightly so. The engravings are meant to reflect the personal religious (or nonreligious) beliefs of each individual service member laid to rest — not to honor and represent all service members, who practice a diverse array of faiths and belief systems.

The “secular” Latin cross, then, is pure fiction. Adopting that fiction to excuse the government’s maintenance and display of a 40-foot Latin cross would strain credulity.

More importantly, it would be a dark day for the separation of church and state. Unlike President Trump’s travel ban, which the Supreme Court upheld last year despite its clear intent to target Muslims, the Bladensburg Cross case does not arise in the immigration or national-security contexts, in which the court has traditionally given more deference to the government. No matter the reasoning employed, permitting the government to display the Bladensburg Cross would be an unmistakable rebuke of the establishment clause’s “clearest command” that all faiths be treated equally, with government preference or favor given to none.

The consequences of upending what has long been regarded as a core First Amendment tenet would be alarming, especially now, when religious minorities across the country are regularly (and literally) under attack. It would open the door to a wide array of religious expression and conduct by the government, endorsing and favoring the majority’s religion while excluding and further alienating those who don’t share that faith. Hopefully, the court will recognize what is at stake here and affirm the decision below.