SCOTUS Takes Up Cross Case


WASHINGTON, D.C. — The U.S. Supreme Court agreed to review two cases involving a 40-foot cross in the median of a busy suburban Maryland highway honoring those who died during World War I. Both lower court decisions ruled that the cross violated the Establishment Clause of the First Amendment.

The “Peace Cross,” made of granite and cement, was built in 1925 as a tribute to local men who died during World War I. It was paid for by local families, businesses, and the American Legion. But the giant cross sits on a piece of land that has been owned since 1961 by a state commission that pays for its maintenance and upkeep. It stands at Maryland Route 450 and U.S. Route 1 in Bladensburg, Maryland, approximately five miles from the U.S. Supreme Court.

The shape of the “Peace Cross” was selected to bear a likeness to cross-shaped grave markers used for soldiers buried in American cemeteries overseas. A plaque on the base of the cross lists the names of 49 soldiers and both faces of the cross have a circle with the symbol of the American Legion, the veterans’ organization that helped raise money to build it. Among the names listed are farmers from southern Maryland, a medical school professor from Georgetown University and a Medal of Honor recipient who was the president of the Marine Corps baseball team. The men were killed in action, mostly in France, in the final months of the war which ended on Nov. 11, 1918. Many others were affected by the flu pandemic and died during training in the U.S.

The challenge to the 93-year-old cross began with The American Humanist Association which filed a 2014 lawsuit against Maryland officials, which argued that the cross “discriminates against patriotic soldiers who are not Christian.”

The questions presented to the High Court include: (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

In Lemon v. Kurtzman, the Court ruled that in order to pass constitutional muster, the government action must be diluted with secular influences. The late Justice Scalia described the so-called “Lemon Test” as a “ghoul in a late-night horror movie” that the Court brings out to scare people and sometimes leaves in the closet. Other justices, including Clarence Thomas, have criticized the “Lemon Test” because it does not provide firm guidance to lower courts. The High Court could finally overturn this unconstitutional precedent.

“The case involving the ‘Peace Cross’ is significant, and the fact the Supreme Court decided to take up the case provides hope that bad precedent on the Establishment Clause will finally be overruled,” said Mat Staver, Founder and Chairman of Liberty Counsel. “I am hopeful the Supreme Court will jettison old precedent that causes so much damage and confusion to the Establishment Clause. In 2005, the Court issued two Ten Commandment cases on the same day, using the ‘Lemon Test’ in one case and no test in the other case. It is past time the Court return to the Constitution and abandon unworkable manmade tests,” concluded Staver.

Used with the permission of Liberty Counsel.

Liberty Counsel is an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics.