As the guns fell silent after World War I in 1918, 49 families in Prince George’s County, Maryland, grieved the loss of their sons. But visiting their sons’ graves was difficult because they rested in cemeteries overseas.
In 1925 the American Legion and the Gold Star families commemorated their loved ones by dedicating a 40-foot memorial in Bladensburg, Maryland. The memorial was in the shape of a cross, with the American Legion’s star emblem in the center and the words “Valor,” “Endurance,” “Courage,” and “Devotion” on the four sides of the base.
The servicemen’s names are emblazoned on the cross. Most were farmers and laborers in their teens or twenties; one was a college chemistry instructor; and another was a well-known surgeon. The oldest (age 51) was Gunner Henry L. Hulbert, who served over 20 years in the Marine Corps, and had been awarded the Medal of Honor for his service in Samoa. In the summer of 1918, as General John J. Pershing arrived at an American encampment on the Marne River to bestow medals for heroism, he asked why Hulbert appeared before him soaking wet. Hulbert answered that he had been on the other side of the river and, not wanting to be late for the general, swam across.
At least two were African-Americans. John Henry Seaburn enlisted at age 16, died in battle from gunshot wounds, and was initially buried in a French military cemetery. He was later interred at Arlington National Cemetery, in 1921. His niece, Alvergia E. Guyton, donated his letters and military records to the Prince George’s African American Museum and Cultural Center. Now in her 80s and living in a nursing home, Guyton is disturbed that the memorial may be dismantled. “I’m shocked they would even think about that. It’s been there all my life.”
The monument stood undisturbed until 2015, when the American Humanist Association demanded its removal as an unconstitutional establishment of religion.
In 2015, Federal District Judge Deborah K. Chasanow ruled that the Bladensburg cross may remain because it has a secular purpose, does not have the primary effect of advancing or inhibiting religion, and does not constitute excessive government entanglement with religion.
But in October 2017, the Fourth Circuit U.S. Court of Appeals voted 2-1 to reverse Judge Chasanow’s ruling and held that the cross does violate the First Amendment. The American Legion and others filed a petition for writ of certiorari with the U.S. Supreme Court, and in November 2018 the High Court agreed to hear the case.
This is encouraging because the court accepts less than one percent of all appeals. But what will the court do with this case? Oral arguments before the court took place on February 27, and a decision is expected before the end of June. As Justice Brett Kavanaugh has replaced swing Justice Anthony Kennedy on the court, the decision it reaches could indicate whether the court is ready to move in a new direction on Establishment Clause cases.
Embodied in the First Amendment of the Constitution, the Establishment Clause states that Congress shall make no law “respecting an establishment of religion.” The intent was not to remove religion from the public square, but to prevent Congress from establishing a state-sponsored church along the lines of the Church of England. Over time, however, the Supreme Court began making parts of the Bill of Rights, including the Establishment Clause, applicable to the states through a legal theory called the “Incorporation Doctrine,” which incorporates the Bill of Rights into the 14th Amendment. Also, the court has expanded the definition of “an establishment of religion” way beyond that of a state-sponsored church. By the 1960s, for example, the court had claimed that official prayers in public schools constituted the establishment of religion and therefore were unconstitutional. Step by step, the court has imposed “the separation of church and state,” even though that phrase is nowhere found in the –Constitution.
Since 1971, the court has sometimes analyzed the so-called Establishment Clause using the three-prong test of Lemon v. Kurtzman, which asks whether the practice in question (1) has a secular purpose, (2) has a primary purpose that neither advances nor inhibits religion, and (3) does not involve excessive entanglement of government with religion. If the practice fails any of these three tests, it is struck down as an establishment of religion.
But other cases suggest that the Lemon test is not appropriate for cases such as the Bladensburg cross.
In Marsh v. Chambers (1983), the Supreme Court upheld the Nebraska Legislature’s practice of opening each day with a prayer by a chaplain paid by the state. Noting that legislative chaplains and legislative prayers were a common practice in the American colonies and in the states after independence, that the Continental Congress had prayers, and that Congress itself in 1789 instituted congressional chaplains, the court held that “historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress — their actions reveal their intent.” The court concluded:
In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society.
Like legislative chaplains and legislative prayer, the public display of crosses and other arguably religious symbols is an unbroken tradition that predates the First Amendment, and nothing in the language or history of the First Amendment evinces any intent to alter or abolish that tradition. Let’s examine the history of that tradition.
Display of the Cross in American History
During the Age of Discovery, the planting of a cross was associated with discovery and claims of ownership. As the historian Dr. B.A. Hinsdale explained,
A cross reared on an island or coast would be evidence that it had been visited and appropriated by a Christian navigator…. John Cabot raised on the shore of North America crosses surmounted by the flag of England and the banner of St. Mark, and Cartier raised crosses crowned with the fleur de lis on the shores of the Gulf and River St. Lawrence. St. Lusson stood near a cross at the Sault Ste. Marie when he took possession of the Great Lakes in the name of the redoubtable monarch, Louis XIV of France, as did La Salle when, at the mouth of the Mississippi, he took possession, in the same name, of the vast region that the Mississippi drains.
According to his Journal, when Christopher Columbus first landed on what was probably Watling Island on October 12, 1492, he planted a cross and took possession of the new land for the king and queen of Spain. On the rest of his journey and subsequent voyages, he planted a cross on every land he discovered.
When Hernando Cortés landed at Vera Cruz (True Cross) on April 22, 1519, he planted a cross and claimed the territory for Spain. Hernando de Soto did the same upon crossing the Mississippi River in 1541. In 1853, Congress commissioned William Henry Powell to paint Discovery of the Mississippi by De Soto. The painting depicts de Soto, his officers and soldiers, and Native Americans, and the raising of a large wooden cross. The painting was placed in the Capitol Rotunda in 1855, where it remains today.