2 Potential Supreme Court Cases Christians Should Know About

By Samuel Smith, Deputy Managing Editor Friday, September 21, 2018

The American Legion v. American Humanist Association

Last October, the Fourth Circuit ruled that the gigantic Bladensburg cross has the primary "effect of endorsing religion and excessively entangles the government in religion." The cross sits on public property as part of a war memorial and is hard for drivers to miss as they go by on the local street.

Although a district court ruled in favor of the American Legion and the Maryland-National Capital Park and Planning Commission, the Fourth Circuit ruled that the "the Latin cross is the core symbol of Christianity" and essentially is unmistakable as an endorsement of religion.

"Two of the most prominent World War I memorials at Arlington Cemetery, which is federal land, are in the shape of a Latin cross," Jeffrey Harris, a partner with Consovoy McCarthy Park PLLC who is involved in the Supreme Court petition, said. "The Fourth Circuit tried to distinguish those on fact-specific grounds in part because they are smaller. So 40 feet verses 20 feet or 30 feet. I found that extremely unpersuasive. I think the court was really straining to say why this cross has to go but the ones in Arlington Cemetery are fine. I think if we reach a world where you can have a World War I cross on federal land in Arlington Cemetery but not on state land in the war memorial park in Bladensburg, it is more of an indictment of the doctrine more than anything else."

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Harris highlighted another problem he has with the Fourth Circuit's ruling.

"I think that leads to some really odd outcomes," Harris said. "As a result of that reasoning is that Bladensburg would essentially have to do is pick World War I out of every armed conflict of the 20th and 21st century and essentially pick that one for removal from this area of all the monuments just because the people who commissioned the monument designed it in the shape of a Latin cross."

"Through no fault or intentional acts of the government, now that area is very developed, now it is kind of in the middle of an urban area at a major intersection," he continued. "So all of a sudden, it went from this memorial kind of off by itself to kind of in the middle of things. I think we have this weird dynamic and I think it's a radical proposition that something could essentially evolve into an Establishment Clause violation based on changes in the surrounding area that had nothing.

Earlier this week, the city of Pensacola, Florida, also filed a petition to the Supreme Court, challenging the Eleventh Circuit's ruling that the city's failure to remove a cross that has been in a city park for over 75 years violates the Establishment Clause.

In response to the Bladensburg cross case, Luchenitser said that it is "hard to predict" if the Supreme Court will choose to review it.

"The court has passed on other cross cases over the years. I don't know whether that will mean that they think it is time to take one or they will keep passing," he said. "I don't really see a solid case that there is a circuit split here. No circuit has upheld the display of such a large prominent cross such as this one. There are also some problems of the procedural posture of this case that may weigh against Supreme Court review. There is no final judgment and no remedy has been ordered. The court may want to see and wait to see what the remedy will be."

Luchenitser explained that perhaps, the cross could be sold to a private party or other objects could be added to the area around the cross to reflect the veterans of other faiths and of no faith. He rejected Harris' argument that it is unfair to require the removal of the Bladensburg cross and protect the crosses at Arlington Cemetery because the cemetery also features other structures that reflect fallen soldiers of other faiths.

"Indeed, the state added two 38-foot tall soldier statues near the cross while the case was on appeal. So the display is now different from the one the Fourth Circuit considered on the record for the panel," Luchenitser said. "The Supreme Court might want to give the circuit the opportunity to consider whether these statues change the result. Also, the cross is in poor condition. Some chunks have fallen off, there are some cracks. It appears that the state isn't sure whether it is physically or economically feasible to repair it. There might be other changes to the display while the case is pending."

In July, over 100 members of Congress signed onto a petition urging the Supreme Court to take on the Bladensburg cross case.