Earlier this month, the American Humanist Association (AHA) announced that the US Supreme Court will hear their case against the Peace Cross in Bladensburg, MD. The 40-foot tall cross is a World War I memorial that the AHA says is an explicitly Christian symbol on public ground, making it not only a church/state separation violation but also a slap in the face to non-Christians who served their country. The AHA’s legal counsel, led by senior counsel Monica Miller, first filed a complaint against the Peace Cross in 2014, and the 4th Circuit U.S. Court of Appeals ruled the cross was unconstitutional. However, according to the AHA, a month later both the government and American Legion separately filed petitions to the SCOTUS to overrule the decision. Now the Supreme Court has to face a case that, as the Freedom From Religion Foundation’s Andrew Seidel recently wrote, “could bring down the wall” separating church and state.
According to Seidel, there are only two possible reasons why the Supreme Court decided to take the case. The first is that conservative justices welcome such a controversial case because, he explains, SCOTUS’ “solid conservative majority is ready to begin checking items off the Federalist Society wish list.” The second is the conservative justices don’t think there’s anything wrong with a cross on government property and doesn’t think the cross is even a Christian symbol. “If this is true,” Seidel writes, “then those conservative justices essentially do not believe that the Constitution guarantees anything like the separation of state and church currently enjoyed by people in the United States. The justices will have bought into the Christian nationalist worldview that helped carry Donald Trump into office and will do untold damage to our republic and the principles for which it stands.”
I contacted Miller for comments on both the upcoming case and Seidel’s dire warning. “I'll start off by saying that although we are disappointed the Supreme Court has taken the case,” she said, “we remain confident in our legal position. It's important to remember that our opponents only needed four justices to vote in favor of granting cert, but they need five to win. The Court didn't vote to grant cert until after [Brett] Kavanaugh was confirmed, so it's possible he was the fourth vote.”
Kavanaugh’s confirmation is troubling for what it might mean for the future of church/state separation. “His record makes very clear that he supports a right for government to advance and promote Christianity,” says Nick Little of the Center for Inquiry (CFI), “despite the clear wording of the Constitution.” Shortly after Trump announced his nomination for Kavanaugh, the CFI released a statement detailing his history of rulings and opinions on church/state separation cases. For example, in the case of Santa Fe v. Doe, Kavanaugh’s opinion was banning prayers broadcasted at public school football games would result in “the full extermination of private religious speech from the public schools.”
What particularly worries Little is how supporters of the Peace Cross and other religious symbols on public ground see these symbols not as religious, but historical. Shortly after Fourth Circuit decision, Hiram Sasser of religious-freedom organization First Liberty told the Washington Post, “If this decision stands, other memorials—including those in nearby Arlington Cemetery—will be targeted for destruction as well.” Maryland Gov. Larry Hogan also spoke out against the Fourth Circuit decision by calling it “an affront to all veterans.”
Referring to the argument that the cross symbol is sectarian, Little says, “The idea that this sort of government expression of religious preference—and there is nothing that is more of a symbol of Christianity than a cross—can be used to justify government support of and promotion of religion in a huge range of areas.” By referring to the Peace Cross, the Ten Commandments displayed in front of county courthouses, and “In God We Trust” plaques in government offices, it reinforces the idea that the US is a “Christian nation,” despite what John Adams wrote in the Treaty of Tripoli. “This case isn't about a single, giant cross on public land,” Little says, “maintained at taxpayer expense. It bears the risk of allowing seemingly limitless government displays of support for religion, particularly Christianity, in our public schools, our parks, and our government buildings.”
Despite the uncertainty, Miller remains optimistic. “The stakes are high, no doubt,” she says, “but the Court usually confines its Establishment Clause rulings to the narrow facts at hand. So even if we lose, it's more likely to be a narrow rather than sweeping loss.”
Little agrees. “They face a very hard battle,” he says, “but they are a great organization, with great lawyers, and they will have support from the entire secular movement. I'd be lying if I said I wasn't extremely worried about the outcome, but that would be the situation whoever was bringing the case. It's an uphill fight, in face of Justices who seem more than happy to ignore the Constitution.”