The Supreme Court will hear a case this week challenging the constitutionality of the Bladensburg Peace Cross. It was erected in Maryland in 1925 to honor the memories of 49 local men who gave their last full measure of devotion defending our liberties during World War I. It was financed and constructed by the American Legion.
Humanists are challenging it before the Supreme Court as a violation of the Establishment clause of the 1st Amendment. But this is flatly and historically impossible. The 1st amendment only binds Congress, as its very first word states (emphasis mine throughout): “Congress shall make no law regarding an establishment of religion...”
Well, Maryland is not Congress, and a cross is not a law. “Establishment” had a technical and precise meaning when the First Amendment was drafted. It referred to picking one Christian denomination and making it the official church of the United States. (10 of the original 13 states had “established” churches, by the way.) Only Congress has the power or the authority to violate the Establishment clause. Maryland couldn’t establish a national church even if it wanted to. If we use the Constitution as written by the Founders, it’s impossible for Maryland to violate the Establishment Clause of the First Amendment.
And the federal government - including the judiciary - is further forbidden by the First Amendment to “prohibit...the free exercise” of religion. The people of Maryland were exercising their religious liberty when they erected this cross. The Supreme Court is forbidden by the federal Constitution from restricting religious liberty anywhere. If the justices rule against the cross, then whatever else they might be doing, they will be prohibiting the free exercise of religion, which they are expressly forbidden to do.
The plain truth is that if the justices rule against the cross, they will be ones violating the Constitution, not the good people of Maryland.
Since Congress - and by extension, the entire federal government - is forbidden to intrude into the religious affairs of any state, this case should not even be in a federal court. The Supreme Court should have rejected this case when it was presented to them on grounds that it simply has no jurisdiction in a case like this. The Court should have kicked it back to Maryland for its Supreme Court to decide based on its own constitution.
Now the Maryland constitution provides ample protection for religious expression. Here’s how the state constitution reads (Article 1, Section 16):
That as it is the duty of every man to worship God in such manner as he thinks most acceptable to Him, all persons are equally entitled to protection in their religious liberty; wherefore, no person (note: including those who erected the cross) ought by any law to be molested in his person or estate, on account of his religious persuasion, or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace or safety of the State...
The complaint against the cross, which has stood unmolested for 94 years, comes from just three people who complain of “unwelcome contact” with the cross, which means they can see it from their car when they drive to work.
Even using the conceit that the Court has any business taking this case, plaintiffs are still out of luck. As Clarence Thomas has frequently pointed out, the minimum thing you must have for a violation of the First Amendment is some kind of coercion. Well, nobody here is forcing anybody to do anything. Nobody is obligated to look at the cross, venerate it, believe what it stands for, or even drive by it.
In defending the cross, the Legion cites the Court’s opinion in Van Orden and Town of Greece, which says that “when a government uses religious imagery in a way consistent with ‘the rich American tradition of religious acknowledgments’ . . . the display will be presumptively valid unless it is shown that the government was exploiting this tradition to coerce or convert nonadherents.”
Twenty-nine states have filed a joint brief in support the cross, and 24 senators (23 Republicans and Joe Manchin) and 85 current and former members of the House of Representatives have filed a joint brief of their own. (It will come as no surprise that all 85 are Republicans.)
As our national anthem has it, this is the “land of the free.” The cross is perfectly constitutional without any question. Let’s hope the Supreme Court sees it the same way.