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Supreme Court eyes ‘flawed’ church-state precedent
by Diana Chandler, posted Friday, February 22, 2019

WASHINGTON (BP) — Religious liberty advocates including Southern Baptists hope the U.S. Supreme Court will establish a clear precedent Feb. 27 to answer a question regarding the separation of church and state in the public square.

The U.S. Supreme Court will hear an appeal Feb. 27 to save a 40-foot-tall veterans’ memorial cross in Bladensburg, Md., that could clarify legal precedent regarding the Establishment Clause of the U.S. Constitution.
First Liberty photo
On the court’s docket is the case of the 40-foot Bladensburg Cross World War I veterans’ memorial on public property in Bladensburg, Md., ordered removed by the Fourth Circuit U.S. Court of Appeals in support of the American Humanist Association (AHA).
The upcoming ruling in the case of The American Legion v AHA would affect thousands of memorials nationally, supporters of the monument say. Justices could clarify decades of Establishment Clause precedent that federal judges and justices alike have variously described as “flawed” and a “hot mess.”

U.S. Supreme Court Justice Clarence Thomas in 2018 said the high court’s “Establishment Clause jurisprudence is in disarray,” USA reported in a Feb. 20 report on the Bladensburg case.

The AHA claims the Bladensburg memorial, erected in 1925 by the American Legion, violates the First Amendment’s Establishment Clause because it is owned by the Maryland National Capital Park and Planning Commission and, being shaped like a cross, simultaneously promotes religion. The Fourth U.S. Circuit Court of Appeals agreed with AHA in 2017, reversing a lower court’s ruling in favor of the cross and setting up the ultimate legal appeal in the case.

The high court’s ruling “is of enormous importance for religious denominations and other faith groups,” according to an amicus brief joined by the Southern Baptist Ethics & Religious Liberty Commission and a diverse coalition of faith groups said to represent 55 million Americans.

“Despite disagreements on many points of faith,” the amicus brief reads, the faith groups “are united in supporting religious freedom, which is seriously threatened by the Fourth Circuit’s holding that a war memorial is unconstitutional merely because it takes the shape of a Christian cross.”

Interpretation of the Establishment Clause has been a litigious question affecting the free exercise of religion in the public square, encompassing such freedom of conscience matters as medical insurance coverage of abortifacient drugs and creative services provided by bakers, florists and photographers.

“Widespread litigation over such matters produces unnecessary societal division, creating legal costs for religious organizations and attendant burdens on the Nation’s courts — as well as a risk of decisions conveying judicial hostility rather than respect for religion,” the amicus brief reads. “Open-ended or subjective legal standards adopted in prior cases deserve much of the blame for the explosion in Establishment Clause litigation over the past several decades.”

In a recent similarly situated case, Kondrat’yev, et al v. City of Pensacola, a three-judge federal panel lamented a “flawed” “hot mess” of legal precedent in Establishment Clause cases that forced them to vote against a 34-foot cross in Pensacola, Fla.

Two of the three judges in the Pensacola ruling, Charles Ashley Royal and Kevin Newsom, said their decision was guided by a 1983 precedent in the nearly identical case of ACLU v. Rabun County that should be revisited and reversed.

“There is no injury, no harm, and no standing to support jurisdiction in this case, but there is an Eleventh Circuit rule that directs us to affirm the district court based on this flawed precedent,” Royal wrote in his concurrence in the Pensacola ruling. “Rabun County needs to be reversed, and this Court needs to devise a practical standing analysis.”

First Liberty Institute and Jones Day are supporting the American Legion in the Bladensburg cross case.

“The Supreme Court is the last hope for preserving the 90-year-old Bladensburg WWI Veterans Memorial,” First Liberty CEO Kelly Shackelford said in his latest press release on the case. “We are eager to present oral argument to the Court ... explaining why the law must honor the way mothers chose to remember the service and sacrifice of the sons they lost in the defense of freedom during World War I.”

The memorial honors by name 49 soldiers who died in WWI and was initiated in 1919 by their grieving mothers. The names of the dead are engraved at the foot of the cross, with the inscription, “This Memorial Cross Dedicated To The Heroes of Prince George’s County Who Gave Their Lives In The Great War For The Liberty Of The World,” according to First Liberty. The cross stood unchallenged for 90 years prior to the AHA’s objection in 2014.

The high court has set aside 70 minutes to hear arguments in the case, the Daily Herald of Frederick, Md., reported, compared to an established practice of setting aside an hour for such matters.

Diana Chandler is Baptist Press’ general assignment writer/editor. BP reports on missions, ministry and witness advanced through the Cooperative Program and on news related to Southern Baptists’ concerns nationally and globally.