The 40-foot-tall "Peace Cross," which sits on public land, was declared unconstitutional by a lower court.
On Wednesday the U.S. Supreme Court will be asked on to decide whether a 40-foot-tall cross-shaped memorial to 49 servicemen who died in World War II violates the Constitution.
Built in 1925, in Bladensburg, Maryland, the memorial was paid for by private funds, but now stands on public land, after a state commission took over the area it sits on in 1961. In 2012, the American Humanist Association, which claims on its website to advocate “progressive values and equality for humanists, atheists, and freethinkers,” filed a suit against the monument on the grounds that it commemorated Christianity above other religions.
In 2017, the U.S. Court of Appeals for the 4th Circuit declared the memorial unconstitutional, saying that it “has the primary effect of endorsing religion and excessively entangles the government in religion.”
“The Latin cross is the core symbol of Christianity,” Judge Stephanie D. Thacker wrote. “And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds. Therefore, we hold that the purported war memorial breaches the ‘wall of separation between Church and State.’”
The American Legion joins the state commission of parks in defending the cross, and according to an NBC News report, is arguing that the passive display of religious symbols does not amount to government coercion. For decades the court has asked whether a reasonable person would see the presence of religious symbols as the government’s endorsement of a particular religion in order to test the constitutionality of religious symbolism in public spaces.
“The test should be coercion,” Michael Carvin, a lawyer representing the American Legion, said. “Has there been some tangible threat to liberty because of what the government is doing, such as outright proselytizing? That should be the question.”
The Court has, in the past, ruled against the public display of religious symbols, declaring that framed copies of the Ten Commandments in front of two Kentucky courthouses violated the Establishment Clause. Its record is, however, mixed: while it ruled that a clergy-led prayer at a public school graduation was unconstitutional, it also ruled against a challenge to the use of the phrase “Under God” in the Pledge of Allegiance and against a challenge opening state legislative sessions with a prayer.
The Trump Administration filed a friend of court brief saying that Bladensburg’s Peace Cross does not violate the Constitution because it is a passive display of a religious symbol.
“Passive displays generally fall on the permissible side of that line, because they typically do not compel religious belief; coerce support for, or participation in, any particular religion or its exercise,” the government said.
The government argued that “the context, history and physical setting of the display underscore its secular message: commemoration and respect for the fallen.”
A decision is expected by late June, according to the NBC report.