The Supreme Court ruled on Thursday that a World War I memorial in the shape of a 40-foot-tall cross can stand on public land in Maryland.
The justices, in a 7 to 2 ruling, said that the presence of the 100-year old Peace Cross on public land does not violate the First Amendment’s establishment clause.
“The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent,” Justice Samuel Alito wrote in the majority opinion.
Lawyers from the First Liberty Institute and the law firm Jones Day argued the case on behalf of the American Legion, which had erected the cross in 1925. In briefs and oral arguments, they asked the court to overturn decades of often unclear and contradictory liberal precedents regarding religious displays on public property. Justice Alito’s opinion agreed that the court’s earlier rule, known as the Lemon test, provided no clear legal guide for deciding the case. The court held that longstanding memorials such as the Peace Cross were presumptively constitutional.
Justice Clarence Thomas, writing in a separate concurring opinion, urged the court to go further and directly repudiate the Lemon test in all contexts.
Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
The 40-foot-tall “Peace Cross” in Bladensburg, Maryland was built to honor the 49 men from Prince George’s County who fell in the Great War. In 1961, a Maryland state agency took possession of the land on which the memorial stands.
The legality of the 93-year-old memorial was challenged by an atheist organization called the American Humanist Association, which argued that the cross sent an exclusionary message in violation of the Establishment Clause of the First Amendment.
In 2015, a federal judge in Maryland ruled against the plaintiffs, holding that the Maryland Parks and Planning Commission had nonreligious reasons for maintaining the historically significant, secular war memorial. A divided U.S. Court of Appeals for the 4th Circuit overturned that ruling.
The American Legions lawyers said the 4th Circuit’s opinion imperiled war memorials all across the country that employ crosses to honor the dead. The court’s decision on Thursday creates a boundary of protection for longstanding memorials, including those at Arlington National Cemetery in Virginia.
Ken Klukowski, senior legal editor for Breitbart News, was one of the attorneys representing the American Legion.
The cases are American Legion v. American Humanist Organization, No. 17-1717, and Maryland-National Capital Park and Planning Commission v. American Humanist Association, No. 18-18.