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Supreme Court to decide whether a cross can be anything other than religious

Does a cross ever have little to no religious significance?

This question lies at the heart of the issue in a case set to be argued tomorrow before the U.S. Supreme Court, involving a 40-foot-high war memorial in a busy Bladensburg, Md., traffic median.

Formally dedicated in 1925, the “Peace Cross,” as it is commonly called, was erected to honor 49 local soldiers killed in World War I. Funding initially came from private donors and later the American Legion. The Prince George’s County government assumed ownership of the memorial for public safety reasons, given its location along the roadway. While the Peace Cross is the most visible symbol in the area, it is part of a larger memorial park honoring various veterans and war dead from the War of 1812 up through the Sept. 11, 2001, attacks.

In 2014, The D.C.-based American Humanist Association, made up of agnostics and atheists, and three state residents sued, claiming the cross was an unconstitutional violation of the Establishment Clause and “discriminates against patriotic soldiers who are not Christian, sending a callous message to non-Christians that Christians are worthy of veneration while they may as well be forgotten.”

A trial court initially ruled that the cross did not violate the constitutional separations of church and state, but an appeals court found the opposite. Now it’s up to the justices to decide the Peace Cross’ fate in a case known as “The American Legion v. American Humanist Association.”

Proponents of the memorial claim that it bears no religious significance and possesses only cultural and civic ideals. Thirty states filed “friend of the court” briefs supporting the memorial and the American Legion, with West Virginia’s solicitor general noting that “despite the memorial’s obvious Christian symbolism, this is a monument that was conceived for civic, not religious purposes. … It was designed as a type of surrogate grave site, with its shape chosen in conscious reflection of the fields of crosses in Europe that marked the actual grave sites of the soldiers it commemorates.”

Opponents see it differently. They say the American Legion, which had taken over the construction of the memorial, dedicated the cross “in a ceremony replete with Christian prayers led by Christian clergy,” according to Richard Katskee, the legal director of Americans United for Separation of Church and State. And since then, Mr. Katskee notes, “there have been Christian memorial services and Sunday worship services at the site.”

So, is it possible to separate the religious significance of the cross — its Christological foundation — from its meaning? For Pope Benedict XVI, it’s not. “Jesus really died for all, and … he also died for me. Thus God’s freely given and merciful love had been made manifest in the Cross,” he wrote in 2008.

And Pope Francis two years ago noted that “the 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.”

The First Amendment prohibits the government from “establishing” a religion. For Justice Hugo Black, writing in 1947, that meant only one thing: the separation of church and state. As he put it, “the First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”

And yet, Justice Sandra Day O’Connor in 1984 argued that the use of religious phrases and symbols in the public square can often have no religious significance. They merely “ceremonial Deism” — the use of religion to make a point involving civic engagement — she said, quoting Dean Eugene V. Rostow of the Yale Law School. She acknowledged that government “sponsorship of a religious message” may send a 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” and said the court’s duty is to determine whether official use of religious language or symbolism “endorses” one religion at the expense of all other ones.

In 1971, the Supreme Court attempted to resolve these questions by creating the so-called Lemon Test, named for the case of Lemon v. Kurtzman. The test has three prongs, all of which various justices have soundly criticized for almost 50 years now. It asks justices to determine whether the practice has a secular legislative purpose, whether it advances or inhibits religion and whether it fosters excessive governmental entanglement with religion.

We do not know how the current court will approach this issue, using the Lemon Test or Ms. O’Connor’s ceremonial deism argument.

It appears clear that for practicing Christians and for at least a certain segment of non-Christians, however, a cross cannot lose its Christological character. We’ll have to wait to see whether the justices agree.

Jack Fruchtman ( teaches constitutional law and politics at Towson University.

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