On Friday, the Supreme Court granted a petition to review a lower appellate court’s decision on the Peace Cross war memorial in Bladensburg, Md. The lower court had ruled it to be an unconstitutional endorsement of religion under the establishment clause of the U.S. Constitution.
This case could have reverberating effects throughout the law surrounding the establishment clause. Specifically, it could have a substantial impact on deciding whether religiously themed monuments may be maintained on government land. Across the nation, monuments depicting religious imagery are being challenged by groups arguing that having these monuments on public property constitutes government establishment of a religion. These monuments include a World War II-era cross in Bayview Park in Pensacola, Fla., and a Ten Commandments monument erected in Little Rock, Ark., to name only two.
The Peace Cross is a war memorial. Simply because it is shaped like a cross, 40 feet tall, visible to the public, and maintained by the government, the U.S. Court of Appeals for the Fourth Circuit held that the presence of the cross on government property comprises a government endorsement of religion. This is troubling, not only because the monument was erected to honor the fallen of World War I, but because Arlington National Cemetery is also within the jurisdiction of the Fourth Circuit. If the Fourth Circuit’s decision is to stand, it will be hard to argue why the tombstones engraved with the religious symbols representing the faith of those who died for our country should stand as well.
While the groups filing suit often display a hostility toward religion, these claims are viable under today’s unstable and amorphous precedent governing the establishment clause. The problem is that there is no clear line defining these rules, and the end result will be a dilution, if not a total hollowing out, of the right to religious expression in the public square.
Many years ago, Thomas Jefferson claimed that “[o]ur peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”
More recently, the late Justice Antonin Scalia asserted that establishment clause jurisprudence is a “geometry of crooked lines and wavering shapes.” At this rate, it looks like the justices may have to grab their best erasers and rulers, and set straight this decades-long endeavor to reshape the establishment clause.
Alexandra McPhee is Director of Religious Freedom Advocacy at the Family Research Council.
