A majority of Supreme Court justices appeared inclined to allow a nearly century-old, 40-foot Latin cross honoring 49 men who died in World War I to remain in place on public land as they questioned litigants contesting whether the memorial’s presence on public lands violates the separation of church and state.
But during the 70-minute-long argument, the court appeared more divided on the question of when a religious display located on public land is permissible. The dispute may jeopardize other cross-shaped war memorials around the country.
The Peace Cross, which is part of the Bladensburg World War I Veterans Memorial located in Prince George’s County, Md., was erected by bereaved mothers whose sons died in the war. Several of the justices noted that while the cross is the preeminent symbol of Christianity, Latin crosses were often used to memorialize service members killed during World War I. Additionally, the cross bears no religious writings and is part of a larger park with other monuments for past armed conflicts.
But Justice Ruth Bader Ginsburg, the lead member of the court’s liberal wing, stressed the prominence of crosses in the Christian faith, noting that “people wear crosses” to show their devotion to Christianity.
In one exchange, Chief Justice John Roberts, who often sides with conservatives, questioned American Humanist Association attorney Monica Miller, who challenged the constitutionality of the cross, whether a Native American totem erected on property owned by the federal government would have to be taken down. Ginsburg, meanwhile, asked Neal Katyal, representing the Maryland commission that owns the monument, whether a cross-shaped memorial honoring those killed during a school shooting would be permissible.
The key question in the case is whether the 94-year-old Peace Cross violates the Establishment Clause, which bars the government from favoring one religion over another.
The American Humanist Association filed a complaint in federal court in 2014 arguing the memorial was unconstitutional, but the district court disagreed. A three-judge panel on the 4th U.S. Circuit Court of Appeals, however, reversed the lower court’s ruling, saying the “purported war memorial breaches the wall of separation between church and state.”
The American Legion asked the Supreme Court to take up the case in June. Despite its shape, the group said, the Peace Cross is solely a war memorial and has only been regarded by the community as such. The justices in November agreed to weigh in on the dispute.
The American Legion and its supporters — which include the state of Maryland and 30 others, members of Congress, and the Trump administration — fear that if the 4th Circuit’s ruling is left in place, similar cross-shaped memorials nationwide would be in jeopardy, including two World War I memorials in Arlington National Cemetery.
The fate of those monuments appeared to be a concern for conservative Justice Samuel Alito, who asked Miller what message it would send for Americans to “see crosses all over the country being knocked down.”
Noting the uncertainty surrounding how a ruling from the Supreme Court could impact other cross-shaped memorials, Justice Stephen Breyer, who usually votes with the court’s liberal bloc, suggested the Peace Cross be allowed to stand, but future monuments of the same shape would not be allowed.
“What about saying past is past, if you go back 93 years, but no more?” Breyer asked.
Liberal Justice Sonia Sotomayor, who also frequently raised the appearance of the cross, noting its 40-foot height and location in the middle of a bustling intersection in Bladensburg. She also noted that, as the American Humanist Association has argued, the cross can be moved, transferred to private land, or returned to The American Legion, which owned the memorial until 1961.
“It dwarfs buildings,” Sotomayor said. “It dwarfs people.”
During the argument, Miller revealed that she and others challenging the constitutionality of the cross have received death threats as the litigation has weaved its way through the courts.
Construction of the Peace Cross began in 1919 and was completed in 1925. The names of 49 men who died during World War I are inscribed on the base of the monument. The American Legion initially owned the monument, but in 1961, the Maryland-National Capital Park and Planning Commission obtained ownership.
The commission has since spent $117,000 on repairs and maintenance of the memorial and set aside $100,000 for restoration.
A decision from the Supreme Court in the case is expected by the end of June.
