Cross case offers Supreme Court chance to clarify religious expression

Today, it seems like Americans can agree on only one thing: Our country is divided. Worse, we are divided in our approach to our nation’s bedrock principles — including freedom of religion. We are divided today not over merely which religions are acceptable but whether any religious reference is acceptable in the public square. If we cannot find a way to deal with that disagreement, the fissures have the potential to tear us even farther apart.

The Establishment Clause of the First Amendment is a guarantee that the government will not interfere with religious practices. Some groups have interpreted the Establishment Clause to mean a ban on public expressions of religion. Should this interpretation be widely accepted, freedom of religion is in danger of becoming freedom from religion. The case The American Legion v. American Humanist Association, which the U.S. Supreme Court has agreed to hear, is an opportunity to bring clarity to this vital question and truly protect and uphold freedom of religion for all.

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The Establishment Clause says that “Congress shall make no law respecting an establishment of religion,” but our federal courts have made a muddle of what exactly constitutes an “establishment of religion.” Because of this ambiguity, some groups and individuals assert that the mere presence of religious symbols in the public square — where those symbols serve to commemorate our greatest tragedies and celebrate our highest victories and achievements — is unconstitutional.

In The American Legion v. American Humanist Association, an anti-religion group is attempting to uproot and destroy a memorial in Bladensburg, Maryland, that was built to honor fallen World War I soldiers. The American Humanist Society argues that the memorial violates the Constitution because it is in the shape of a cross; the group claims that the mere presence of a symbol with religious overtones constitutes a government establishment of religion. Lost on the plaintiffs is the fact that the cross, a symbol of selfless sacrifice, became a reminder of those lost in WWI because the European battlefields used the cross to mark the great loss of life. The sight of those crosses was immortalized by soldier and poet (and ultimately, a casualty of the war) John McCrae, who wrote “In Flanders Fields”: 

In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below. 

We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders fields.

Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

This is the latest in a string of cases in which groups or individuals with anti-religious bias have targeted historical monuments and memorials simply because they incorporate religious imagery. As recently as 2016 in the case Davis v. Shade, Alliance Defending Freedom (ADF) and Jones Day attorneys defended a Ten Commandments monument at the Allegany County Courthouse after a passerby filed a lawsuit, claiming that the monument offended him; the plaintiff later voluntarily withdrew the case. More recently, ADF has filed an amicus brief in The American Legion case, asking the Supreme Court to uphold the constitutionality of the Bladensburg monument.

These lawsuits are trying to use the Supreme Court to scrub all religious symbols and expression from the public square. Rather than tolerating an even playing field for various religions, the plaintiffs would have the judicial branch ban all public displays of religious symbols and expressions. 

These cases make it to court because of what’s known as the “offended observer” standard, which allows anyone to file an Establishment Clause case simply because they saw or heard something they disliked. To file a lawsuit in any other situation, a person must show a concrete, particular injury. But with an Establishment Clause claim, the bar is set much lower.

The Supreme Court has criticized the standard. In the 2014 case, Town of Greece v. Galloway, the justices upheld the rights of Americans to open public meetings with prayer. The high court emphasized that, in a free society, people will encounter ideas they find offensive and that is not sufficient reason to censor or restrict the free expression of those ideas. In other words, nothing justifies toppling monuments one by one to make sure no one’s bothered by seeing a cross, a Christmas tree, or the Ten Commandments.

The American Legion v. American Humanist Society is an excellent opportunity for the Supreme Court to move past the offended observer standard and clarify that the Establishment Clause does not mandate the eradication of religious expression from the public square. Instead, it protects the right to religious freedom for all Americans.

The Bladensburg memorial simply and passively honors men who sacrificed their lives in defense of freedom. Of course it is a cross. But crosses send many messages — of remembrance, honor, love and appreciation for sacrifice.

The sight of a cross-shaped memorial to fallen heroes moves many of us. We recall our own lost loved ones and remember the great price of the freedom Americans have today. Nothing legitimizes eliminating these noble sentiments from our political landscape because the symbols that evoke them might offend someone. As McCrae so eloquently pleaded before he himself fell, “If ye break faith with us who die, we shall not sleep, though poppies grow In Flanders fields.”

Kristen Waggoner is senior vice president of U.S. legal division for Alliance Defending Freedom, which filed an amicus brief with the U.S. Supreme Court in defense of the Bladensburg Cross.