SALT LAKE CITY — The Supreme Court could answer a brainteaser next term if it agrees to hear a case centered on a 93-year-old cross: When is a Christian cross not Christian?
The answer, according to those fighting for the Peace Cross to remain on public land in Maryland, is when it honors fallen soldiers, rather than Jesus Christ.
"It's a veterans' memorial," said Hiram Sasser, deputy chief counsel for First Liberty Institute.
Others, including a majority of the judges serving the 4th U.S. Circuit Court of Appeals, say a cross doesn't stop being Christian when a war-related plaque is attached.
"If you were approaching it in a motor vehicle, you wouldn't think 'Oh, there's a cross-shaped memorial.' You'd think, 'There's a huge Christian cross,'" said David Niose of the American Humanist Association, the organization that filed the lawsuit against the Peace Cross.
Cases involving crosses aren't new, but they're becoming more significant as the share of Americans who identify as Christian continues to drop. This figure fell from 78.4 percent in 2007 to 70.6 percent in 2014, according to Pew Research Center.
What would it mean for faith groups if the government got out of the cross business for good?
"Religious expression is a fundamental aspect of human culture, just like race, sex, music or art," said Luke Goodrich, vice president and senior counsel for Becket, a prominent religious liberty law firm based in Washington, D.C. "If we erase all religious references from the public square, that would tell a false story about who we are as human beings."
Memorial cross or cross-shaped memorial?
Sasser and Niose were referring to the Peace Cross in Bladensburg, Maryland, a 40-foot tall structure that stands near the center of a busy intersection. Constructed in 1925, the cross honors World War I veterans from Prince George's County.
"It was put up to honor 49 men who made the ultimate sacrifice," Sasser said.
The cross and the land surrounding it were originally maintained by the American Legion, but the government took control in 1961 during a road construction project. Around $117,000 of public money has been spent on upkeep since then, according to The New York Times.
In 2014, the American Humanist Association and three Maryland residents sued the Maryland-National Capital Park and Planning Commission, arguing that the government's ownership of the cross violates the First Amendment's establishment clause. The clause prohibits lawmakers from giving a faith group special treatment.
"These citizens came to us because they felt it was wrong for a large Christian cross to be on public property. We agree with them on that," said Niose, the legal director of the Appignani Humanist Legal Center, the legal arm of the American Humanist Association, which advocates on behalf of Americans who don't believe in God in legislatures and courtrooms across the country.
The American Legion, represented by First Liberty Institute, joined the state of Maryland's defense of the cross. They won at the district level, but the 4th U.S. Circuit Court of Appeals reversed this decision in October 2017.
"Even in the memorial context, a Latin cross serves not simply as a generic symbol of death, but rather a Christian symbol of the death of Jesus Christ," the opinion explained.
Attorneys representing the Maryland-National Capital Park and Planning Commission have appealed to the Supreme Court with the support of many religious freedom groups, as well as the state of Utah. Justices could announce whether they'll hear Maryland-National Capital Park and Planning Commission v. American Humanist Association as soon as early October.
"Even at the 4th Circuit where we lost, it was a relatively tight vote," Sasser said. "We should have somewhat of a favorable shot at the Supreme Court."
The Supreme Court has a confusing record on cases involving religious symbols, according to Goodrich, the Becket attorney. In the past, justices have allowed some crosses and Ten Commandments replicas to stay on public land or in government buildings, but they've disagreed on what justified the various rulings.
"The Supreme Court hasn't yet been able to get five votes for a consistent, coherent legal standard for resolving these cases," he said.
Legal experts, including Supreme Court justices, interpret the establishment clause differently, Goodrich noted. Some believe it outlaws only active interference with a faith group, like mandating church attendance. Others reject any government behavior that appears to endorse religious practice.
Previous, split decisions seemed to say that "the establishment clause is about protecting the feelings of (religious) outsiders," Goodrich said.
Cases involving religious symbols are also complicated by the context surrounding the monument or display in question. Judges may allow a cross or menorah on public land if it stands next to other religious symbols. They consider whether there's a secular purpose that outweighs a monument's religious associations.
Supporters emphasize that the Peace Cross isn't used for religious services and that it shares land with other war memorials. Its purpose is to honor veterans, not celebrate the Christian faith, Sasser said.
"We should honor the memory of those who fought and died for our freedoms," he said.
But Niose said the outcry surrounding the American Humanist Association's actions betrays the religious concerns at the heart of the case.
"The fact that people feel this is an attack on religion actually validates our position that this (cross) is a religious endorsement," he said.
What's at stake
Like legal experts, religious freedom advocates don't agree on what to do about crosses on government land. In these cases, supporting religious expression in the public square can make it seem like you're disinterested in the concerns of non-Christian Americans.
The Peace Cross "asserts the truth of one religion and, implicitly but necessarily, the falsehood of all other religions," said Doug Laycock, an expert on religious freedom law at the University of Virginia, to The New York Times last year.
For Becket, support for religious symbols wins out. The organization rejects the notion that religion should stay in private, Goodrich said, noting that Becket has advocated on behalf of a Jewish menorah, too.
"What Becket is working for is not a world in which no religious person ever feels offended about anything. The government should be true to our humanity and history and culture," he said.
He compared government stewardship of crosses to publicly funded St. Patrick's Day parades and government participation in African-American history month. Religion is a big part of American culture and should be celebrated as such, he said.
When you outlaw religious symbols from the public square, "it impoverishes our culture," Goodrich said.
Becket has filed a brief in support of the Peace Cross and currently represents another publicly owned cross in court. In Amanda Kondrat'yev, et al. v. City of Pensacola, Florida, they're fighting to protect a cross erected at the start of World War II that stands in a public park.
As in Maryland, the American Human Association is currently winning in Florida. Becket appealed to the 11th U.S. Circuit Court of Appeals and a ruling is expected any day. This case could end up before the Supreme Court next term, Goodrich said.63 comments on this story
Cross supporters warn that recent losses for crosses could lead to a reshaping of the American landscape. Sasser worries about a famous cross in Arlington National Cemetery, which stands near the tomb of the unknown soldier.
"Are we going to tear that down, too?" he asked.
The American Humanist Association and the non-Christians it represents aren't on a search and destroy mission, Niose said. The goal is to separate church and state, not to tear down all signs of faith.
"It's really just a matter of getting people to understand there's nothing wrong with large religious symbols as long as the government isn't the entity that's displaying them," he said.