As many gathered around a Christmas tree last week, attorneys representing thousands of Americans were busy putting the finishing touches on friend-of-the-court briefs in support of the Bladensburg World War I Veterans Memorial.
The “Peace Cross,” as local residents call it, is a simple cross-shaped memorial of concrete and bronze, sitting in the median of a highway in Bladensburg, Md. In 1919, mothers who lost their sons in World War I designed the memorial, which The American Legion then built, dedicating it in 1925. The mothers of 49 men from Prince George’s County chose the shape of a cross as the memorial, recalling the gravestones erected over their sons on European battlefields.
But after nearly 100 years, that memorial to heroes of the Great War is threatened: A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit declared last year in a 2 to 1 decision that it is an unconstitutional endorsement of religion. If their decision stands, the Peace Cross likely will have to fall.
Fortunately, the Supreme Court has agreed to hear the appeal made by The American Legion, whom we at First Liberty Institute, along with Jones Day, represent. We argue that this veterans memorial is not only constitutional, but that the primary test the court devised in 1971 to evaluate veterans memorials like it is no longer viable.
The “Lemon,” or “endorsement,” test upon which the Fourth Circuit relied in finding the memorial unconstitutional, suggests a so-called “reasonable observer” can determine whether the state has endorsed a religion by the maintenance of a cross-shaped veterans memorial on public property. Almost routinely, this “reasonable observer” is offended by anything religious appearing on public property. In this case, after 93 years in the same location without complaint, the Fourth Circuit determined that the Peace Cross constitutes an endorsement of religion in violation of the Constitution.
That ruling ignores the purpose of the two religion clauses of the First Amendment. The Establishment Clause is designed to prohibit the state from coercing its citizens to engage in a particular religious observance — it was never meant to sanitize the public square from all traces of religion. In fact, the Establishment Clause is complemented by the Free Exercise Clause; together, they protect religious liberty by preventing the suppression and compulsion of religious exercise.
Moreover, the Lemon Test sets up a battle of feelings rather than dispassionate legal analysis. In the complaint that started this lawsuit back in 2014, the plaintiffs base their claims upon how the monument makes one of them feel: He is “personally offended and feels excluded by this governmental message.”
But what of the feelings of those Gold-Star mothers who dreamed of this monument to their sons? What of the feelings of the nearly 2 million current members of The American Legion who voluntarily took up arms in the defense of freedom? Has the law no regard for the feelings of those who lost fathers, brothers, uncles and cousins and wish to maintain a memorial to them, lest we forget the supreme cost of their sacrifice?
There is no reasonableness in an observer who would have hurt feelings over the simple presence of a cross-shaped veterans memorial on public property. Should the court cater to those with hurt feelings, they will just as suddenly be offended by the hundreds of memorials like the Peace Cross nationwide, including Arlington National Cemetery.
None of the men who fought in World War I are alive today. Indeed, think of this: To our knowledge, only five of the roughly 300 survivors of the World War II battleship U.S.S. Arizona are still alive. Before long, none of the men who survived Pearl Harbor will be here to personally remind us of the great cost of freedom. When they are finally laid to rest, we will remember their sacrifice because of the monuments erected over a watery grave. We maintain memorials because we forget what we do not see.
The U.S. Supreme Court may be the last hope for the Bladensburg WWI Veterans Memorial. And, if the Lemon test is not now abandoned, will any veterans memorial like it be safe?
Kelly Shackelford (firstname.lastname@example.org) is president and CEO of First Liberty Institute (FirstLiberty.org), a non-profit law firm dedicated to defending religious freedom for all. First Liberty and its network attorneys with Jones Day represent The American Legion before the U.S. Supreme Court in The American Legion, et al. v. American Humanist Association, et al.