Courts and the Judiciary

A 40-Foot Cross Has Honored War Dead for 90 Years. Is It Unlawful?

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In a 2-to-1 ruling, the three-judge panel declared that the Peace Cross violated the First Amendment by having “a primary effect of endorsing religion and excessively entangles the government and religion.”

Douglas Laycock, a religious liberties scholar and professor at the University of Virginia School of Law, praised the decision.

The cross “asserts the truth of one religion and, implicitly but necessarily, the falsehood of all other religions,” he said. “Its secondary meanings, as in honoring war dead, are entirely derivative of its primary meaning as a symbol of the Resurrection.”

If the Fourth Circuit denies a request for the full court to reconsider the panel’s decision, defenders of the monument vow to take the case to the Supreme Court. They argue that the ruling sets a dangerous precedent, threatening national treasures such as the 24-foot Canadian Cross of Sacrifice and 13-foot Argonne Cross in Arlington National Cemetery — both within the Fourth Circuit’s jurisdiction — as well as the ground zero “cross,” the steel beams discovered among World Trade Center debris now on display in the National September 11 Memorial & Museum.

“It is brooding hostility toward religion, a sort of cleansing,” said Kelly Shackelford, the president of First Liberty Institute, one of the legal groups aiding the American Legion in defending the cross. “We would immediately need to begin massive bulldozing and sandblasting of veterans memorials across the country in a way that most people would find inconceivable.”

In his Fourth Circuit dissent, Chief Judge Roger L. Gregory, first appointed by President Bill Clinton, argued that the Establishment Clause “does not require the government ‘to purge from the public sphere’ any reference to religion.”

Supporters of the cross also argue that context is vital: The Peace Cross is displayed alongside an American flag, amid a park of memorials for veterans of various wars. Its four sides, they say, are marked prominently with patriotic, not religious, virtues: valor, endurance, courage and devotion. The fallen soldiers are listed on a tablet with a quote from President Woodrow Wilson.

But opponents say it is hardly integrated: No other monument in the area is taller than 10 feet, and there are no other religious symbols in the park. They note that its fallen soldiers’ names are rusted away and obscured by bushes. And the cross has been the site of prayer gatherings as well as Veterans Day vigils — and even such vigils are often opened in prayer.

Two past Supreme Court cases, decided the same day in 2005, may foreshadow the factors that would control the outcome in the Supreme Court.

In McCreary County v. American Civil Liberties Union of Kentucky, officials had authorized the display of framed copies of the Ten Commandments in courthouses. After pushback, they had modified the exhibits to include Magna Carta, the Declaration of Independence and other historical documents, arguing that the Ten Commandments were similarly influential in the development of Western legal thought.

The Supreme Court ruled the displays unconstitutional, finding that they had no evident secular purpose. Michael W. McConnell, a constitutional law scholar at Stanford, calls such displays “triumphalism — a flavor of who is top dog.”

In a second case, Thomas Van Orden v. Rick Perry, the court allowed carvings of the Ten Commandments in a Texas State Capitol monument that had been donated by the Fraternal Order of Eagles, a primarily secular group, in 1961. The court cited the donor’s lack of religious intent.

In his Van Orden opinion, Justice Stephen G. Breyer, who cast the swing vote in both cases, called the historical factor alone “determinative”: The monument had stood since 1961 without controversy.

The Peace Cross, also donated by a secular group, is almost twice as old as the monument in that case, and has been on public property for a comparable span. If the Supreme Court reviews this one, Mr. McConnell believes it will be squarely governed by Justice Breyer’s opinion.

“I think they thought they were putting this kind of case to rest with Van Orden,” said Mr. McConnell, who has also served as a judge in the Tenth Circuit Court of Appeals. “Somehow, the Fourth Circuit didn’t get the memo.”

“I think this is a pretty easy case, and I found the Fourth Circuit’s decision quite surprising. If the Supreme Court were to grant review, the likelihood is very high that it would be reversed.”

But Peace Cross opponents argue that there is a stark difference between the Ten Commandments and a cross — namely, the figures each represents.

“The court pointed out that Moses was a lawmaker as well as a religious leader,” said Monica Miller, senior counsel at the American Humanist Association, who argued the case in the Fourth Circuit. “There were connections to the nation’s history of lawmakers that made the Ten Commandments overall less religious than an enormous, free-standing Latin cross that unequivocally represents Christianity.”

The Supreme Court’s thinking on displays of the cross is murky.

In Salazar v. Buono, a 2010 decision regarding a cross-shaped war memorial in a remote part of the Mojave Desert, six justices wrote distinct opinions. In 2011, when the Supreme Court declined to hear an appeal regarding a series of highway memorial crosses for fallen police officers in Utah, Justice Clarence Thomas’s 19-page dissent argued that the court had rejected “an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.”

Awaiting its fate, the Peace Cross stands with a tarp draped neatly across the top, where the concrete has begun to crumble. Elizave Mordan, the King Pawn manager, can see it from her shop.

“We heard they may be taking it down, and I disagree with that. It just doesn’t bother anybody around here,” she said as she sorted through used power tools, record players and antique jewelry for sale.

“I worry nobody is going to remember them,” she said of the 49 fallen soldiers. “You can’t remember something you cannot see.”

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Wendy Pettit

Wendy Pettit is a writer for NYT and writes for other publications on her spare time. She lives in Chicago with her husband and her dog Zuko.

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