The Bladensburg Peace Cross and the First Amendment
WASHINGTON: When I was a graduate student and instructor at the University of Maryland, I drove by the Bladensburg Peace Cross. That cross is now very much in the news.
Built in 1925, the Bladensburg Peace Cross is of granite and cement and honors veterans of World War I. Local Prince George’s families, businesses and the American Legion built the monument.
In the years of segregation, the names of those fallen in battle were listed, with no regard to race.
The 40-foot cross was built on private land. However, since 196, a Maryland state commission has beein paying for its upkeep.
American Humanist Association Lawsuit
A lawsuit brought by the American Humanist Association, an organization of agnostics and atheists, claims the Peace Cross violates the First Amendment. And, in particular, our tradition of separation of church and state.
As the Fourth Circuit Court of Appeals ruled against the cross, the case has moved to the Supreme Court for consideration.
First Amendment establishment clause
It is often forgotten that the First Amendment “establishment” clause not only enjoins Congress from any measure “respecting an establishment of religion,” but also from any measure “prohibiting the free exercise thereof.”
Since 1971, the Supreme Court has been guided by the so-called Lemon Test, named for the case of Lemon v. Kurzman. In this case, the Supreme Court found laws in both Rhode Island and Pennsylvania providing state money for parochial schools for the sole purpose of secular instruction.
Chief Justice Warren Burger, for a unanimous court, declared that, for a law to be constitutional, if it touches on religion, it
“..must have a secular legislative purpose…neither advance nor inhibit religion…and not Foster excessive government entanglement with religion.”
Lynch v. Donnelly
In 1984, in the case of Lynch v. Donnelly, Justice Burger himself wrote an opinion upholding the right of the city of Pawtucket, Rhode Island to sponsor a crèche at a Christmas display that included other seasonal symbols.
Sponsoring the crèche, he said, is an example of a legitimate exercise of legislative power that merely happens to coincide with the practice of a particular religion.
The fact is that reference to God has been present in our public life from the very beginning.
The Declaration of Independence acknowledges God in four separate places.
The framers of that instrument announced that the colonies were assuming “the separate and equal station to which the laws of nature and nature’s God entitle them.”
The Declaration states:
“We hold these truths to be self-evident: that all men are created equal, that their Creator endows them with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”
Those who signed the Declaration proclaimed:
“And for the support of the Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.”
History of God in America’s Founding
The Continental Congress opened its sessions, beginning in 1774, with a prayer delivered by a clergyman.
In 1776, regular chaplains were authorized and subsequently appointed.
In 1787, Congress adopted the Northwest Ordinance, for the governance of the Northwest Territory.
Article 3 proclaimed:
“Religion, morality, and knowledge, being necessary to good government, and the happiness of mankind, schools and the means of education shall ever be encouraged.”
Congress provided an annual salary for chaplains 1788.
The First Amendment and Religion
The First Amendment intends to make government neutral among religious sects, not neutral between religion and non-religion. Professor Charles Rice, in his book “The Supreme Court and Public Prayer,” noted:
“…the public life of the American states was based upon the unapologetic conviction that there is a God who exercises a benevolent providence over the affairs of men. This is not to say that all Americans then recognized God, or that there was agreement on all the details of his attributes, But to those who assert that the First Amendment was designed to prevent the government from recognizing God and praying His aid, it can rightly be said that they will have to find evidence for their claim elsewhere than in the history of the period prior to 1787.”
Lee v. Weismann
In 1992, the Supreme Court ruled 5-4 that the practice of prayer at public school, graduation ceremonies is unconstitutional. The case, Lee v. Weismann was brought by a Rhode Island middle school student who argued that a non-sectarian prayer delivered by a rabbi at official public school graduation was a violation of the Constitution.
The event in question took no more than two minutes. Rabbi Leslie Gutterman gave thanks to the “God of the free, home of the brave.” For “the legacy of America where diversity is celebrated, and the rights of minorities are protected.”
In his dissent of Lee, Justice Antonin Scalia declared:
“The officially sponsored nondenominational invocation and benediction read by Rabbi Gutterman …are so characteristically American that they could have come from the pen of George Washington or Abraham Lincoln himself…From our nation’s origin, prayer has been a prominent part of official ceremonies and proclamations… In his First inaugural address, after swearing his oath of office on a Bible, George Washington deliberately made a prayer a part of his first official act as President…There is simply no basis to the proposition that the…nondenominational invocation and benediction read by Rabbi Gutterman —with no one legally coerced to recite them—violated the Constitution.”
What the First Amendment is saying has mostly been forgotten.
Judge Thomas Cooley, a leading constitutional scholar of the 19th century, put it this way in his “Principles of Constitutional Law”:
“[The] Establishment of religion is meant the setting up or recognizing of a state church, or at least the conferring on one church of special favors and advantages which are denied to others.
The Constitution never intended that the government should be prohibited from recognizing religion, or that religious worship should never be provided for in cases where a proper recognition of Divine Providence in the workings of government might seem to require it, and where it might be done without drawing invidious distinctions between different religious beliefs, organizations or sects.”
How the Bladensburg Peace Cross case will resolve remains unclear.
One possible path forward can be seen in the last time the Supreme Court took a cross on public land under consideration. At that time, Supreme Court Justice Elena Kagan was President Barack Obama’s Solicitor General.
Kagan’s argument in defense of the cross in the Mojave National Preserve was that it is a “war memorial.” Therefore it should remain as a tribute to the fallen heroes of World War I.
The Supreme Court remanded the case back to the appeals court, and a land swap eventually resolved the matter.
The Maryland National Capital Park and Planning Commission, which inherited the Bladensburg monument, says the court need not break new ground to allow the landmark memorial to remain.
The commission’s lawyer in the case, Neil Katyal, says the monument is “no ordinary cross.”
Valor, Endurance, Courage, Devotion
At its heart is the symbol of the American Legion, at its base four words: “Valor, Endurance, Courage, Devotion.”
There is, he points out,
“…not a single word of religious content. The easiest way to resolve this case is to say, in the wake of World War I, crosses like this one have an independent secular meaning.”
The Bladensburg Peace Cross has stood for decades without controversy
The monument meets the test the Supreme Court establishes for such debates:
“that it had a secular purpose, that its “primary effect” was religious neutrality, and that there was not excessive entanglement of government and religion.”
Crosses are appropriate recognition for fallen soldiers
In a brief supporting neither side, law professors, Walter Dellinger of Duke and Martin Lederman of Georgetown, point out that crosses are entirely appropriate on the gravestones provided by the government for fallen Christian service members.
“For that reason,” they write. “The Bladensburg Peace Cross may pass constitutional muster by virtue of an idiosyncratic characteristic of that monument, namely that it memorializes 49 residents of Prince George’s County, who were, in all likelihood, Christians.”
More than likely, the Bladensburg Peace Cross will survive. However, the debate over the place of religion in our public life is a necessary one.
The First Amendment means something entirely different than those seeking to eliminate this monument proclaims. Consulting the views of those who wrote this Amendment and ensured its adoption would be useful.