Supreme Court Decides in Favor of Historic Cross on Park Property

By Richard J. Dolesh | Posted on July 8, 2019

Supreme Court Cross blog 410

In a recent landmark decision, the Supreme Court issued a highly anticipated ruling in the case of a large Latin cross, “Peace Cross,” located on park property in Bladensburg, Maryland. The 40-foot-high Peace Cross was erected in 1925 by the American Legion in honor of the 49 Prince George’s County citizens who died in service to the country in World War I. Surprising many, the court ruled in favor of allowing the cross to remain standing in its present location. The split decision in which conservative judges joined liberal judges surprised many court watchers and experts in the way that it came down with seven separate opinions.

The cross is located on land that was transferred to the Maryland-National Capital Park and Planning Commission (MNCPPC) in 1961 when a new highway intersection was built around the cross leaving it in the middle of a small island of park property.

There it sat as an unusual local landmark for nearly 70 more years until the American Humanist Association (AHA), a non-profit atheist organization sued the Park and Planning Commission charging that the cross was an infringement on the Establishment Clause of the First Amendment of the Constitution. The Establishment Clause, as it is often called, sets forth principles regarding the relationship of government to religion, including prohibiting the government from actions which favor one religion over another.

In 2015, a federal judge declined to order that Peace Cross be removed, declaring it to be a sectarian memorial with historical significance. However, on appeal, the 4th Circuit of the U.S. Court of Appeals, in a split decision, reversed that decision, calling the cross a “preeminent symbol of Christianity,” and ruled it was an unconstitutional endorsement of religion. According to legal experts, the ruling did not surprise court observers. The case was remanded to the lower court to encourage the plaintiffs to find a solution that parties could agree to which did not run afoul of the Establishment Clause. Transferring the land to another owner was one such solution. One of the circuit judges suggested that the arms of the cross could be removed to make it an obelisk shape like the Washington Monument, horrifying local preservation advocates who feared the cross would be dismembered.

Monuments which portray the Latin cross are strongly associated with Christianity and are not often seen in a secular frame of reference. Legal scholars compared the Appeals court decision on Peace Cross to the fight over the Mt. Soledad cross in San Diego, California, another large cross on public land. After 25 years of continuous litigation over the Mt. Soledad cross, the land and cross were finally sold to a private non-profit association by the city of San Diego.

A suit brought by the American Humanist Association and joined by the Freedom From Religion Foundation, asserted that a Latin cross in Bayview Park in Pensacola, standing since 1941, violated the Constitution and must be removed. A federal district court judge declared this cross unconstitutional in 2016, a decision which was upheld by a federal appeals court in 2018. The case has been appealed to the Supreme Court which has not yet acted on the petition.

Despite historical precedents and decisions against such crosses as monuments on public land, the Maryland National Capital Park and Planning Commission (MNCPPC) took the step to appeal to the Supreme Court. Adrian Gardner, general counsel for MNCPPC said of the decision to petition the Supreme Court, “Our planning board took a courageous stand. Part of our original reason for being [a park and planning commission] is our preservation purpose. Our case was strong. This cross was not built with a religious purpose in mind.”

The issue of religious symbolism is not new to parks and recreation and there are a number monuments and crosses in parks around the country. In fact, it is perhaps more likely that such memorials or monuments come to be located on park property because of the enduring permanence of public parks and their association with and success in preserving cultural history.

Professor James Kozlowski of George Mason University and author of the highly popular Law Review column in Parks & Recreation magazine has written several times about Latin crosses in parks regarding court decisions which more often than not have gone against allowing such crosses to stand in public parks. A list of Prof. Kozlowski’s Law Review columns on this subject can be found at the bottom of this blog post.

The Supreme Court was clearly divided on the case of Peace Cross and not just along traditional conservative and liberal lines. In a 7-2 vote in favor of allowing the cross to stand, conservatives joined liberals in the majority, yet five justices issued separate statements regarding the decision. As reported in Politico, Justice Alito who wrote the majority opinion said of the cross, “’It has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of ‘a hostility toward religion that has no place in our Establishment Clause traditions,’” Alito added, quoting from Justice Stephen Breyer’s opinion in a 2005 case upholding a Ten Commandments memorial on the grounds of the Texas Capitol.”

Justice Sotamayor joined Justice Ginsburg in opposition with Justice Ginsburg writing, “Precisely because the cross symbolizes…sectarian beliefs, it is a common marker for the graves of Christian soldiers. Just as a Star of David is not suitable to honor Christians who died serving their country, so a cross is not suitable to honor those of other faiths who died defending their nation. Soldiers of all faiths ‘are united by their love of country, but they are not united by the cross….’ By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion.”

Justice Breyer, writing in support of the majority opinion wrote, “The case would be different, in my view, if there were evidence that the organizers had ‘deliberately disrespected’ members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I, but those are not the circumstances presented to us here, and I see no reason to order this cross torn down simply because other crosses would raise constitutional concerns….In light of all the circumstances here, I agree with the Court that the Peace Cross poses no real threat to the values that the Establishment Clause serves.”

As the meaning and impact of this important case is dissected in coming months, it is not surprising to note that parks are often at the heart of some of the most important First Amendment issues we face in our nation. Parks are a place where our values and principles as a democracy are shaped and the crucible in which they are forged. 

Look for more on the fascinating case of Peace Cross when Prof. Kozlowski takes up American Humanist Society v. American Legion in the September 2019 issue of Parks & Recreation magazine.

Richard J. Dolesh is NRPA’s Vice President for Strategic Initiatives.

James Kozlowski has written extensively about religious symbols in parks. Here is a sample of some of his past Law Review columns from Parks & Recreation magazine:

Latin Cross in Public Park Violates Federal and State Constitutions

Supreme Court Split on Public Display of Ten Commandments

Constitutional Fence for a Monumental Controversy?

Eagles Ten Commandments Park Monument Fails “Lemon” Test

Establishment Clause Violation Persists Despite Sale of Park Statue