Richard B. Katskee is Legal Director at Americans United for Separation of Church and State.

Symbols have power. They communicate complex ideas, often more effectively and more forcefully than mere words. They are remembered for decades or even centuries. They speak to the heart, not just the head. And what is true for symbols generally is doubly so for religious ones: They convey at a glance millennia of shared history, collective aspirations and triumphs to those who hold them dear.

To Christians and non-Christians alike, few things are more universally culturally familiar, and perhaps none are more laden with meaning, than the Latin cross. Since the earliest days of Christianity, the cross has been the physical embodiment of Christian tenets of resurrection and redemption — the means to teach religious doctrine while also uniting and rallying communities of believers. Thus, Pope Francis has explained that “[t]he Christian Cross is not something to hang in the house ‘to tie the room together’ … or an ornament to wear, but a call to that love, with which Jesus sacrificed Himself to save humanity from sin and evil.” It shouldn’t come as a surprise, therefore, that viewing the cross can be a profound experience for those who hold it dear. That’s the whole point, after all.

For people of other faiths, however, being confronted with an official display of a Latin cross may be a profound experience in a quite different way: It is not sacred to them, yet the government is telling them to venerate it.

So what of the Bladensburg Cross? Some private citizens in Prince George’s County, Maryland, decided in 1918 to honor 49 soldiers who lost their lives in the Great War. We don’t know how they selected those 49, who came from all over the state and yet weren’t the only Marylanders or county residents to die in the war. The organizers collected donations from other private citizens, requiring them to sign a pledge recognizing the existence of “ONE GOD” and looking to the “SPIRIT” of the fallen soldiers to “GUIDE US THROUGH LIFE IN THE WAY OF GODLINESS, JUSTICE, AND LIBERTY.”

When the organizers ran out of money, the American Legion, also a private organization, took over, completing and dedicating the cross in 1925 in a ceremony replete with Christian prayers led by Christian clergy. Since then, there have been Christian memorial services and Sunday worship services at the site.

To the private groups, the cross, with its many and deep layers of spiritual meaning, served two distinct but mutually reinforcing ends. It allowed them to commemorate the life, death, honor and sacrifice of soldiers presumed to be Christians. At the same time, it provided a vehicle to honor the group members’ own faith and to pledge themselves collectively to a spiritual path that they regarded as righteous. That they celebrated the moral worth of Christian dead, and of Christianity, was their choice, and their right.

But it was not an appropriate or permissible choice for the bi-county agency that gained titled to the cross in 1961 and has maintained it ever since. People of many faiths and of no particular faith fought and died for our country in World War I. The Christian lives lost are deserving of respect, gratitude and remembrance. But they are not more worthy than the lives and deaths of so many others. When we act through our governing institutions, we should show equal regard for the sacrifices of all.

That the Bladensburg Cross was later officially rededicated to all veterans only compounds the problem. For as the U.S. Court of Appeals for the 10th Circuit explained in a different case a few years ago, “a memorial Cross is not a generic symbol of death; it is a Christian symbol of death that signifies or memorializes the death of a Christian.” (The emphasis is the court’s.)

In seeking review, the governmental entity here insisted that the Bladensburg Cross has always been “understood … as a memorial to veterans and the fallen of every faith.” If that’s right, the counties should have recognized from the moment they chose to make the cross their own that the pre-eminent symbol of the Christian faith as an official monument to all veterans disrespects non-Christian veterans, their families and their faiths. Government ought instead to acknowledge the equal worth, equal dignity and equal sacrifice of all who gave their lives in service to our nation.

What is more, most who see the Bladensburg Cross today would not recognize it as a war memorial, whether to the 49 or to all veterans. They see only a towering, illuminated Latin cross watching over the town, reinforcing the spiritual identity and moral worth of the city’s Christian residents. For many who live in this religiously diverse community — including Jews, Muslims, Hindus, Sikhs, Buddhists and nonbelievers — the prominent display of the central symbol of Christianity conveys that “Bladensburg is a Christian community; those who don’t share our faith do not belong.” It shows who matters; who is a “real” American; who is one of “us.” And who isn’t.

Members of minority faiths and nonbelievers aren’t the only ones who are offended and alienated. The principle of the First Amendment’s establishment clause is that religion and government should be kept distinct because that is the only way to ensure religious freedom for all, majority and minority faiths alike. The clause reflects the ideas of Roger Williams, the Baptist theologian and founder of Rhode Island, who preached that for religious belief to be genuine, people must come to it of their own free will. When government involves itself in matters of religion, even if merely to give the mildest nod to a particular faith, he explained, it pushes individuals toward the officially preferred beliefs and practices. And it encourages religious denominations and houses of worship to alter their doctrine to satisfy the predilections of the public officials with the power to confer the favored status.

For many Christians yet today, official use of the pre-eminent symbol of Christianity, however well-meaning, is a profound intrusion on religious freedom. That is all the more true for the counties’ insistence here that the cross is a secular symbol that transcends religious lines. This political misuse of the cross is deeply offensive to many Christians because it denigrates the cross’s sacredness and denies its deep spiritual meaning.

Those who defend the counties’ display of the Latin cross acknowledge none of that. Instead, they ask the Supreme Court to throw out existing establishment clause jurisprudence wholesale.

Some contend that the clause should now be read to bar only formal legal coercion — fines or imprisonment for failure to participate in government-sponsored religious exercises. Yet the Framers unequivocally recognized that official religious favoritism is also a grave harm, to the favored and disfavored alike.

Others maintain that any governmental promotion of religion occurring when the First Amendment was adopted should be licensed because the Founders must not have meant to bar it. Yet the new national government was intended to do very little and was most assuredly not in the business of promoting religion. Whatever state or local governments might have been up to, the First Amendment did not yet apply to them, so their practices say nothing about what the amendment prohibits or condones. And the actual historical record is that, in this country, governments, be they federal, state or local, simply weren’t promoting giant crosses, whether as war memorials or otherwise.

Still others argue that official promotions of religion should be permissible if they have been around for a long time without producing court battles or rioting in the streets. Never mind that religious minorities rarely complain even today, because doing so is dangerous. I have long since run out of fingers and toes on which to count the physical attacks and death threats against my clients in establishment clause cases.

The many bids to rewrite First Amendment jurisprudence all ignore the original animating principle of the religion clauses: to respect the religious freedom of all. The point was not just to avoid in the New World the bloody wars over religion that had plagued the Old, but also to ensure that we all remain free to believe and pray, or not, according to the dictates of conscience, and to protect religions and houses of worship from the impurity and dilution that come with official favoritism as much as with official oppression.

I admit that the Framers probably weren’t thinking about whether government ought to be barred from putting up huge Latin crosses on public land. After all, the government wasn’t doing anything remotely like that. But the architects of the First Amendment were very much aware of the concern often voiced by Justice Sandra Day O’Connor, and adopted by the Supreme Court, that official “sponsorship of a religious message … sends the ancillary message to … nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” The antidote that the Framers prescribed was a separation of government and religion that would ensure enduring religious freedom. As our nation has become increasingly religiously diverse, that fundamental protection is more critical now than ever.

The pitch by petitioners and their supporters here is not just to preserve this one old monument. Rather, it is to scrap the Framers’ vision, and to substitute instead what they assure us is merely benign regard for certain religious beliefs that just happen to be their own.

Is that really a good idea? To borrow again from Justice O’Connor:

At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish.… Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?

Posted in Maryland-National Capital Park and Planning Commission v. American Humanist Association, The American Legion v. American Humanist Association, Featured, Symposium before the oral argument in The American Legion v. American Humanist Association

Recommended Citation: Richard Katskee, Symposium: Cross purposes — Why a Christian symbol can’t memorialize all war dead, SCOTUSblog (Dec. 13, 2018, 10:12 AM), https://www.scotusblog.com/2018/12/symposium-cross-purposes-why-a-christian-symbol-cant-memorialize-all-war-dead/