Monday, February 25, 2019

Three Things About the "Peace Cross" Case that Everyone Should--But Not Quite Everyone Does--Agree Upon

Marty Lederman

On Wednesday, the Supreme Court will hear argument in American Legion v. American Humanist Association, Nos. 17-1717 & 18-18, the case involving the constitutionality of the Bladensburg “Peace Cross.”  (See Adam Liptak's story in the Times today.)

If you’re in the D.C. area and you haven’t seen it, do yourself a favor:  take a visit.  It’s only five miles from the Court—just a twelve-minute drive if it’s not rush hour.  And you should go in the evening.  Approaching from the south on Bladensburg Road (or probably from any other direction), the illuminated concrete Latin cross, forty-feet tall, dominates the landscape like a beacon.  It appears unexpectedly, seemingly out of nowhere and lacking any evident context, and as you approach the oddity of it will only deepen, as you come to see that it stands alone on a grassy, crescent-shaped traffic island at the intersection of two very busy thoroughfares, U.S. Route 1 (Baltimore Avenue) and Maryland Route 450 (Bladensburg Road), surrounded by fast-moving vehicles.  There’s no parking nearby for those who’d be interested in visiting the Cross, nor even a crosswalk to facilitate a closer look.

Indeed, the Peace Cross is so anomalous—so strikingly discordant in its setting—that if you didn’t know anything about its history or the current legal controversy you’d probably assume the Cross (and perhaps the island on which it sits) is privately owned, precisely because it’s not the sort of thing one ordinarily sees on public property, let alone in the middle of busy highway intersections.

But the land and the Cross do belong to an agency of the State of Maryland--the petitioner Maryland-National Capital Park & Planning Commission (MN-CPPC), which was created to provide land use planning for the physical development of Prince George's and Montgomery Counties.  And although the history of the ownership of the Cross and the land over the past century is somewhat tangled and uncertain, it’s uncontested that state entities have owned the Cross, and maintained it at taxpayer expense, since at least 1956, and that governmental authorities were responsible for the erection of the Cross in the first instance:  In 1922, the Commissioners of the Town of Bladensburg “request[ed] and authorize[d]” the Snyder-Farmer Post of the American Legion to “complete the Cross and its surroundings” on then-city-owned land, deeming it a “fitting tribute to those of our boys who gave their lives in the World War.”

As that quotation indicates, the Peace Cross is a memorial to fallen soldiers.  The plaque at the foot of the Cross has an inscription (not legible from the road, alas) that reads: “This Memorial Cross is dedicated to the heroes of Prince George’s County, Maryland, who lost their lives in the Great War for the liberty of the world.”  It then lists the names of 49 residents of P.G. County who perished in the First World War.

You won’t be surprised to learn that the case before the Court, challenging the constitutionality of Maryland’s continued ownership and maintenance of the Peace Cross, has engendered very heated debate, among the parties and in a slew of amicus briefs, on several different constitutional questions, from the specific (Is this cross constitutional and, if not, what’s the proper remedy?) to the general (such as whether the Court should adopt a singular “test” for analyzing the constitutionality of state-owned religious displays and, if so, what that “test” should be). 

I’m responsible for one of those amicus briefs, on behalf of Walter Dellinger and myself.  That brief does not support any of the parties, because we argue two principal things, each of which is contrary to the views of one side or the other:  (i) that a government’s erection and maintenance of a Latin cross as a memorial is presumptively unconstitutional, but (ii) that the Peace Cross in particular might be the rare case in which that presumption is rebutted, due to the very unusual circumstances under which it appears to have been erected—namely, that Prince Georges County was virtually all-Christian during World War I and the record doesn’t reflect any basis for the government to have had reason to believe that any of the 49 soldiers commemorated by the Cross weren’t Christian. 

I won’t belabor our case-specific argument about the Peace Cross here; the brief speaks for itself.  And you can read the various other briefs to get a sense of the questions that divide the parties and their amici.

What I’d like to do here instead is to identify three areas of common ground—three particular propositions that all of the Justices and all of the parties ought to agree upon and that might therefore establish useful baselines for consideration of the questions that divide the parties in the case.  As I’ll explain at the end of the post, however, it appears there’s an important, and surprising, disagreement among the parties on the third and final of these propositions—namely, that the Constitution prohibits the state from using a Latin cross to commemorate non-Christians.

First, even though “[n]o one denies, of course, that the cross is a ‘preeminent symbol of Christianity’” (MN-CPPC Reply Br. at 5, quoting Justice Alito’s concurrence in Salazar v. Buono),* and even though the Peace Cross itself is understood by everyone who sees it as a religious display, evoking the Calvary Cross (as it was designed to do),** nevertheless the parties all agree that there are at least some circumstances in which a government may present or display religious symbols or expression of historical or artistic significance, including the cross, as long as the state does so in order to advance secular ends and does not endorse or favor particular denominations or take positions on the truth or falsity of contested religious questions.  For example, a government-run museum may include religious iconography in art—including depictions of the cross—because of its importance in the history of art or its aesthetic virtues.  

In particular, and of most significance to this case, everyone agrees that a government may use a religious symbol on the headstone, or as the grave marker, of an individual soldier, corresponding to the deceased’s religion, just as the military did in the European cemeteries after World War I, and just as the military does today in the Arlington National Cemetery.  This practice might be viewed, as Bob Tuttle and Chip Lupu suggest, as an "accommodat[ion]" of soldiers' religious needs in that it "allows members of the Armed Forces and their survivors to display their own religious commitments" or, alternatively, as factual speech by the government itself concerning the religious affiliations and commitments of the veterans.  Either way, that practice, standing alone, does not implicate Establishment Clause concerns.

Second, as the Court reaffirmed last Term in the Travel Ban case, Trump v. Hawaii, “‘[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another’” (quoting Larson v. Valente).  The parties do not dispute this foundational Establishment Clause principle, either.  I therefore assume they would all agree that if, for example, Maryland chose to commemorate and valorize only fallen soldiers of one religion, while failing to do likewise for similarly situated soldiers of a different (or no) religion in the same war, such denominational discrimination would be unconstitutional.*** 

Third—and most importantly for this case, as it turns out—the Establishment Clause prohibits a state from using a Latin cross to memorialize soldiers who were not Christian (except perhaps in a hypothetical case in which a soldier’s family consented to it).

This proposition shouldn’t be very controversial, either.  In its reply brief, however, the MN-CPPC asserts (p.9) that the Latin cross has become a “universal symbol of sacrifice” and therefore that it does not “honor[] only Christians.”  Likewise, in its opening brief the MN-CPPC suggests (p.42) that the Peace Cross itself is “a symbolic representation of the community at large.”  And the record indicates that at a ceremony in 1985 attended by over 400 people, “the historic Peace Cross Memorial was re-dedicated in honor and memory of all veterans.” (J.A. 195)

I’m fairly confident that very few Jews, Hindus and Muslims would agree that a Latin cross is a “universal” symbol of sacrifice.  Which is why you won't find any Latin crosses in Jewish cemeteries.  Indeed, most such persons would be deeply offended by the government’s insistence that such a cross could be used to commemorate and honor the sacrifice of their fallen loved ones--a practice that would, in effect, impress non-Christians into (at the very least) an unwanted association with a religion that isn't theirs and, in many cases, with theological messages (about, e.g., the divinity of Christ and the preconditions for salvation and eternal life) that they affirmatively reject.

The Establishment Clause--ratified, in large part, as a bulwark against the risk of repeating the horrific European legacy of forced conversion and religious uniformity--reflects this anti-compulsion aspect of the nondiscrimination norm.  It would be uncontroversially unconstitutional, for instance, for a government to use a Latin cross as a marker on or over the grave of a veteran who was known not to be Christian.  Indeed, as Walter Dellinger and I explain at pages 13-15 of our brief, there was a deep, virtually universal, consensus after World War I—including in Congress, the military, and among groups of all denominations (and the American Legion)—that the use crosses to mark the graves of Jewish veterans in Europe would be not only deeply insensitive but unacceptable, if not sacrilegious.

The same is true when it comes to a “collective,” or "generic," memorial.  As we wrote in our amicus brief:

A government transgresses [a] fundamental norm [against compelled association with others’ religion] when it chooses to commemorate or memorialize soldiers of a multitude of faiths and beliefs with a sectarian symbol associated with one particular religion—especially one, such as the cross, that represents a doctrine promising redemption only to those who conform to the majoritarian religious orthodoxy, and threatening eternal damnation to those who believe otherwise.  In such a case, the nonChristian soldiers (and perhaps even some of the Christian soldiers who do not believe the message of the cross) are, in effect, being posthumously impressed into an association with a religion, and with a deeply contested set of religious doctrines, contrary to their own religious associations, commitments and beliefs (or their agnosticism).  Cf. Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995) (holding that a state may not compel an organization to include in its parade individuals who would march under banners that would convey messages the organization wished not to convey).

Few would dispute that if the state placed a cross on the grave of every soldier who died in service, it would effectively desecrate the burial place of those who are nonbelievers.  The harm occasioned by such “[a] state-created orthodoxy,” Lee, 505 U.S. at 592, is hardly lessened if the nonbelievers are, instead, commemorated by a “collective” cross.

This basic norm against compelled association with others' religion and with sectarian messages that one doesn't accept—a form of coerced conformity at least as troubling as the compelled associations the Court has condemned in cases such as Hurley and Janus—is so self-evident that it’s hard to imagine many state officials, anywhere in the nation, who would today so much as propose to commemorate Muslims, Hindus, Jews etc., with a Latin cross.  And this explains why there are, in fact, very few Latin crosses in the nation that purport to memorialize veterans of many or all faiths—as far as I’ve been able to tell from the briefs, a half-dozen or fewer.

Accordingly, if it is Maryland's official position--now announced in the MN-CPPC's filings in the Supreme Court--that the Peace Cross is a “universal symbol of sacrifice” that memorializes “all veterans,” the most straightforward, narrowest way for the Court to dispose of the case would be simply to hold that the Establishment Clause prohibits the state from compelling non-Christians to be associated with, and commemorated by, the central symbol of Christianity.

* Unlike, say, the military’s Distinguished Service Cross and the red cross that the International Committee of the Red Cross uses as one of its emblems, the Latin cross has not over time lost most or all of its religious character and significance.  Which is why, for example, most Jews wouldn't think twice about being buried wearing a Distinguished Service Cross but would never in a million years agree to the inscription of a Latin cross on their headstone.

** In his keynote speech at the 1924 dedication ceremony for the Cross, U.S. Representative Stephen Gambrill recognized this self-evident feature of the memorial:  “You men of Prince Georges county fought for the sacred right of all to live in peace and security and by the token of this cross, symbolic of Calvary, let us keep fresh the memory of our boys who died for a righteous cause.”

*** As we explain in our amicus brief, it's also undisputed that the Establishment Clause prohibits a government from adopting or expressing or favoring a view about the answer to distinctly sectarian questions that divide denominations, including, in particular, “[t]he miracles of the New Testament [and] the Divinity of Christ.” United States v. Ballard, 322 U.S. 78, 87 (1944); accord Lee v. Weisman, 505 U.S. 577, 641 (1992) (Scalia, J., dissenting).  

Accordingly, if, as Doug Laycock argues in his amicus brief on behalf of the Baptist Joint Committee for Religious Liberty and an array of other religious groups, the Peace Cross invariably conveys central claims of Christianity--such as that Jesus was the son of God; that he died on the cross to redeem the sins of man; that he was then resurrected; and that those who accept Christ as savior will enjoy eternal life--then it would be unconstitutional for Maryland to continue to display the Cross, for the Constitution prohibits the state from expressing a view about such contested sectarian matters.  The parties disagree, however, about whether the Peace Cross conveys such disputed sectarian messages.

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