INSIGHT: Supreme Court Flouts Service of Non-Christian Soldiers, Offends Devout Christians

Most would agree that it is appropriate, even desirable, for the government to honor the service of fallen soldiers through monuments, plaques, and other public displays of remembrance. And most should agree that it is inappropriate for the government to exclusively honor Christian veterans, leaving Jews, Muslims, atheists, and others to be forgotten.

But seven critical people don’t see it that way. In allowing a 40-foot-tall Latin cross to remain on government property in Bladensburg, Md., a majority of the U.S. Supreme Court has approved a Christian public memorial to honor all war veterans.

Writing for the majority, Justice Samuel Alito delivered what has been deemed “a result-oriented failure of reasoning” by leading constitutional scholars. Alito garnered a majority only on the result, but not the rationale. Seven of the nine justices wrote opinions in the case, with no clear consensus emerging among them as to how to view not only this case, but the law as it applies to the First Amendment’s Establishment Clause.

Alito upheld the memorial because of its “special significance.” While needlessly verbose, his underlying reason came down to one primary factor: its age.

Justice Stephen Breyer, joining part of Alito’s opinion and writing separately, agreed that the passage of time secularized the Christian monolith, but emphasized that the decision should not be construed as approving of new religious monuments. His analysis mirrored his 2005 Van Orden v. Perry concurrence, which upheld a decades-old Ten Commandments display.

Justice Brett Kavanaugh, while acknowledging that the cross is obviously Christian, would have overturned the law, tossing out the Lemon v. Kurtzman test entirely in favor of a more lenient test.

Meanwhile, Justice Clarence Thomas concurred in result only, repeating his long-held contention that the Establishment Clause should not apply to the states. Similarly, Justice Neil Gorsuch concurred in the result only, contending that plaintiffs, who were area residents together with the American Humanist Association, lacked standing to bring the case.

It should hardly be surprising that Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. Admonishing the religious favoritism sanctioned by the majority, their dissent stated the obvious: “[U]sing the cross as a war memorial does not transform it into a secular symbol. ... By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion.”

Factual Record Misstated

The majority seemed unconcerned that the government’s display only honors Christian soldiers, and indeed misstated the factual record. Alito wrote that “there is no evidence that the names of any area Jewish soldiers were either intentionally left off the memorial’s list or included against the wishes of their families.”

But, as I explained in our brief, the men listed on the plaque were a seemingly random assortment of individuals from Baltimore, Virginia, and Washington, D.C., regions that had numerous Jewish war dead.

Additionally, as I explained at oral argument, a number of men listed on the Bladensburg plaque did not have a cross engraved on their tombstones at Arlington National Cemetery despite the cross being an available (and widely used) emblem. Thus, the evidence suggests the memorial selectively excluded Jews and appears to have bestowed the symbol of Christianity on some soldiers whose personal memorials omitted it.

This, to today’s Supreme Court, is governmental religious neutrality.

It is noteworthy that an amicus brief filed in the case by the Jewish War Veterans highlighted that of the 250,000 Jewish soldiers serving our country in WWI, over 2,000 came from Maryland—yet none were included.

The American Jewish Committee, the Interfaith Alliance Foundation, the Hindu American Foundation, Muslim Advocates, the Military Religious Freedom Foundation, and the Military Association of Atheists and Freethinkers, among many other groups and scholars, joined us in other amicus filings. All disavowed the government’s argument (adopted by Justice Alito) that the Latin cross is a benign symbol that can honor the sacrifice of non-Christian veterans.

Paradoxically, the ruling does more damage to Christianity than it does to religious minorities. As I warned in our brief: “If the government prevails, it will be a Pyrrhic victory indeed, at least for devout Christians. Allowing the government to recast the Latin cross as a benign secular symbol of war denigrates the religion that it symbolizes.”

Many Christians agreed in amici filed by the Baptist Joint Committee, the Evangelical Lutheran Church in America, the General Synod of the United Church of Christ, and the General Assembly of the Presbyterian Church.

The ruling could have been much worse. The American Legion and its amici sought a complete upheaval of First Amendment precedent. They argued that the high court should overturn Lemon and decades of case law. The Court’s fractured ruling left Lemon intact, albeit a bit bruised.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Monica L. Miller is senior counsel at the American Humanist Association and represented the plaintiffs in the Bladensburg case. Miller is a frequent media commentator and an expert in First Amendment law.