Late last week, the Supreme Court agreed to hear a case from Maryland on whether the Constitution’s establishment clause bars memorials to those killed in war if the memorials contain a cross. The Peace Cross in Bladensburg pays tribute to men of Prince George’s County, Md., who gave their lives in defense of freedom during World War I. The U.S. Court of Appeals for the Fourth Circuit ruled its cross unconstitutional, hence the appeal to the Supreme Court.
More is at stake than one memorial, however, including another memorial two-thirds of a continent away in New Mexico.
The establishment clause provides, as every schoolchild once knew, “Congress shall make no law respecting an establishment of religion.” The Founding Fathers knew exactly what that meant, specifically that King George-style demand of fealty to the Church of England would not be imposed on “the People of the United States.” Nevertheless, over the decades, it has been interpreted to mean whatever was the muddled conclusion of any set of justices who could form a majority. Thus, on one fateful, final day of the Supreme Court’s term in 2005, it ordered removal of the Ten Commandments from courthouses in Kentucky’s rural McCreary and Pulaski counties, but allowed a stone monument containing the Ten Commandments on the lawn of the Texas State Capitol in Austin.
The Peace Cross is a Celtic-style Latin cross on a large pedestal featuring the American Legion’s symbol where the cross’s horizontal and vertical arms meet; “Valor,” “Endurance,” “Courage,” and “Devotion” are inscribed at its base. A plaque displays these words: “Dedicated to the heroes of Prince George’s County, Maryland who lost their lives in the Great War for the liberty of the world.” The names of 49 local men who died and the dates of America’s involvement in the war are listed. Constructed between 1919 and 1925 by the American Legion and a committee of mothers whose sons died in the war, it emulates the cross-shaped grave markers in American cemeteries overseas.
A Maryland federal district court upheld its constitutionality, but a three-judge panel (2-1) reversed, holding that crosses are “the hallmark symbol of Christianity” and “any reasonable observer [would conclude] that the [government] either places Christianity above other faiths, views being American and Christian as one in the same, or both.”
Meanwhile, in northern New Mexico’s high desert, bounded by the Sangre de Cristo Mountains, in the town of Taos, stands a memorial to New Mexicans, mostly Latino, who suffered (half of whom died) in the Bataan Death March during World War II. New Mexican War Mothers, using private donations — the town of Taos was not involved — erected it to honor their loved ones. It includes a Latin cross, a brass plaque that bears the names of New Mexicans who died on the march or in the camps and other Taos citizens killed in World War II, a metal sculpture of soldiers sustaining each other during the march, and the flags of the United States and New Mexico. In 2017, a radical group notified Taos, “The cross must go.” Thus, represented by Mountain States Legal Foundation, Taos urged the court to review the Peace Cross ruling.
Justices must have wanted to hear the case; they conferenced on it five times. Perhaps it was Justice Neil Gorsuch, who hails from the West and no doubt has traveled through Taos, who was so insistent. In a dissent from the failure of the U.S. Court of Appeals for the Tenth Circuit to allow a private association to honor slain Utah Highway Patrol Officers with roadside crosses, he described the “reasonable observer” not just as “unreasonable,” but also as “biased, replete with foibles, and prone to mistake.” Although the Supreme Court declined to hear that case, Justice Clarence Thomas dissented, referencing Gorsuch’s dissent.
Now they are together, with Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh, and Chief Justice John Roberts. The town of Taos has hope at last that by next summer, it will know if it may keep the memorial to its local heroes.
William Perry Pendley is a contributor to the Washington Examiner’s Beltway Confidential blog. He is president of the Mountain States Legal Foundation, has argued cases before the Supreme Court and worked in the Department of the Interior during the Reagan administration. He is the author of Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today.
