In June the Supreme Court ruled that a 40ft war memorial cross on public land in suburban Maryland did not violate the Constitution. But in doing so, it extracted a steep price.
The American Legion erected a monument (pictured) to the First World War dead of Prince George’s County in 1925; a state parks commission has administered the site since 1961. Three plaintiffs and the American Humanist Association sued to remove the Peace Cross in 2014, arguing that the monument was an unconstitutional establishment of religion. The 4th US Circuit Court of Appeals ruled for the plaintiffs, prompting an appeal to the Supreme Court.
Justice Samuel Alito delivered the controlling opinion for a divided court. Though the judgment was 7-2 in favour of retaining the Peace Cross, the dispute produced five separate opinions representing a range of views concurring with the decision. Justices Ruth Bader Ginsburg and Sonia Sotomayor were the two dissenters.
The Peace Cross ruling establishes a kind of antiquarian regime. Monuments erected in the distant past that have never attracted a legal challenge enjoy “a strong presumption of constitutionality”, the court declares. Why is this so? Because old totems become benign features of the landscape that take on new meanings and purposes with the passage of time.
“The recent tragic fire at Notre-Dame in Paris provides a striking example,” Alito wrote. “Although the French Republic rigorously enforces a secular public square, the cathedral remains a symbol of national importance to the religious and nonreligious alike. Notre-Dame is fundamentally a place of worship and retains great religious importance, but its meaning has broadened.”
The unique historical moment that followed the First World War further diminishes the religious character of the Peace Cross in the court’s estimation. Rows of white crosses of the sort described by John McCrae’s poem In Flanders Fields became “inextricably linked with and symbolic of the ultimate price paid by 116,000 soldiers”, Alito wrote. Making its Christian character less discernible still, the court cautions that it is too difficult to discover the reasons behind that association.
The justices went on to say that the removal of displays like the Peace Cross would not be received as a neutral act, whatever the government’s motives.
“A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion,” the decision read.
A troubling prospect indeed. Yet it seems that the court has done as much without all the bother of demolition. The cross, it decides, is a capacious symbol whose ancient connection to the Passion of Jesus Christ erodes in the normal course of events. RR Reno, editor of the First Things journal, has periodically suggested that a kind of dynamic fluidity is at the heart of the modern consensus, a rebellion against constraint in all its forms. His reading of our situation is vindicated if the cross itself lacks a fixed definition, as the court says.
The Maryland parks commission took a different tack, which I criticised in these pages on February 15. The state said that the memorial’s features displace its Christian meaning. The Peace Cross is replete with symbols of the American Legion and sits in a veterans’ park. In Maryland’s view, those facts empty the monument of its religious content. The justices modified this approach only slightly: in their judgment, time, not context, does the deed.
Justice Brett Kavanaugh was attentive to this troubling message in his own separate opinion.
“I fully understand the deeply religious nature of the cross,” Kavanaugh wrote. “It would demean both believers and non-believers to say that the cross is not religious, or not all that religious.” True enough. A statement correcting that misimpression would have been most helpful. Its absence is most revealing.
Still, there is reason for encouragement. The court extended an amnesty to religious displays of a certain vintage. It acknowledged that retroactively purging the faith from public life is malicious – one might say, an establishment in its own right. Those are the signals of a court ready to disengage with disputes over public sectarian images.
That would be a rare retreat for an institution that as a cardinal rule takes a generous view of its own power. This is all the more significant if one appreciates the decisive role the Supreme Court has played in the disestablishment of America’s soft Judaeo-Christian consensus. Beginning, for example, with the 1962 Engel v Vitale decision, the justices have banned prayer in public schools, crèche displays in public buildings, and public remuneration of private school expenses.
So heavy-handed was the Supreme Court’s secularism that, just 20 years ago in his SFISD v Doe dissent, Chief Justice William Rehnquist accused his colleagues of “bristling with hostility at all things religious in public life”. A course correction is promising.