Latin Cross Has Muslim Allies, Baptist Foes at Supreme Court

Feb. 22, 2019, 9:50 AM

Religious equality doesn’t require driving all religion out of the public square, a Muslim group said in support of a cross-shaped monument to fallen Americans in World War I that’s at the center of a U.S. Supreme Court dispute on religious freedom.

“Religious equality is best obtained not through religious censorship, but through more opportunities for religious speech,” the non-profit Islam & Religious Freedom Action Team of the Religious Freedom Institute said in a friend-of-the-court brief ahead of oral argument Feb. 27 in the hot-button case. IRF seeks to protect religious liberty for Muslims.

IRF’s argument that the Peace Cross in suburban Maryland shouldn’t come down just because it’s on public land, as some contend, was one of several amicus briefs submitted by groups on both sides of the argument that weighs a First Amendment question.

The justices’ decision on the 40-foot monument inspired by local families of those who died “Over There” a little more than a century ago could affect hundreds of similar markers across the country.

Range of Views

The best protection for minority faith groups is to have a welcoming of a diverse range of viewpoints, , Miles E. Coleman, a partner at Nelson Mullins Riley & Scarborough LLP in Columbia, S.C., who filed an amicus brief on behalf of IRF supporting Maryland, told Bloomberg Law.

But the Baptist Joint Committee for Religious Liberty, joined by groups including the American Jewish Committee, argues that the government-sponsored cross is offensive to both the Christian and Jewish faiths.

Christians are offended because the cross is being treated as a mere secular symbol, and Jewish people are offended because the cross imposes Christian views on them, it argues.

Died in War

Maryland, a petitioner here, argues that the monument is a secular memorial to those who died in war. The U.S. Court of Appeals for the Fourth Circuit disagreed, ruling in favor of the American Humanist Association, a nonprofit that advocates equality for humanists, atheists and the non-religious.

The ruling faces separate challenges from the American Legion and the state of Maryland that have been merged into one case at the high court.

Treating the cross as having a “predominantly secular meaning would desacralize the most sacred symbol of Christianity,” the Baptist Joint Committee said.

“The cross symbolizes the Christian belief in the crucifixion, the resurrection, and the promise of eternal life to believers, and it cannot be separated from that meaning,” Douglas Laycock, a professor at the University of Virginia School of Law who filed the Baptist committee brief, said.

Saying that the cross honors dead Jews, Muslims, and other non-Christians “imposes a Christian teaching on them” that they didn’t believe while alive, Laycock said.

Minority Religions

IRF, the Muslim religious freedom group, argues that the Fourth Circuit’s approach disproportionately affects minority religions.

The group takes aim specifically at the Richmond court’s application of the Supreme Court’s 1971 decision requiring challenged government displays to have a secular purpose, in Lemon v. Kurtzman.

IRF says Lemon excludes all religious depictions from public grounds unless they’ve “been so secularized as to be stripped of meaningful religious significance,” IRF says.

But unlike Christianity, minority religions aren’t part of the “civil religion” that’s entrenched in American public life, such as the Christmas and Thanksgiving holidays, IRF says.

IRF argues that in contrast, that the displays of minority religious groups are more likely to be “inherently imbued with specifically religious significance” that would fail under Lemon.

The high court has gradually abandoned Lemon, and should now “pronounce with finality the interment” of it, IRF says.

A better approach, which IRF says is more consistent with the establishment clause’s intent, is to let the government reflect and accommodate its citizens’ religious beliefs without requiring anyone to adopt them.

But Laycock, who represented the Baptist and Jewish Committees, said symbols of Islam already aren’t “excluded from the public square,” only from sponsorship by the government.

Neutrality Urged

Though the Baptist Joint Committee is on the opposite side of the dispute from the Islamic and Religious Freedom Action Team, it also says that Lemon shouldn’t be applied here.

The joint committee says that decision requires the government to stay “neutral between religion and non-religion.”

But this case turns on the “government’s much more fundamental obligation” to stay neutral between competing religions, it says.

The Supreme Court did uphold a government display of the Ten Commandments, in 2005’s Van Orden v. Perry.

But the three Abrahamic faiths have the Ten Commandments in common, while the cross is “uniquely sectarian,” the committee says.

Further, the cross is purely religious, while the Ten Commandments has secular elements including prohibitions on murder and theft, which are “wrongs prohibited in the law of every civilization,” the Baptist group says.

“No symbol is more profoundly religious than the Latin cross,” Laycock said.

Laycock said the reality is that “governments put up religious symbols” like the cross for religious reasons, and then lie about it when they get sued.

But purging faith from the public square isn’t the answer, Coleman, who represented the Muslim religious freedom group, said.

Even assuming the cross has an inseparable connection to the Christian faith, the solution is for government to be more welcoming of a broader range of faith groups, Coleman said.

But IRF’s brief is “contrary to the interest of Muslims” because hardly any government in the U.S. will display Muslim symbols, even if the high court allows them to do so, Laycock said.

A decision is expected by the end of June.

The consolidated cases are The American Legion v. American Humanist Ass’n, U.S., No. 17-1717, argument scheduled 2/27/19, and Maryland-Nat’l Capital Park & Planning Comm’n v. Am. Humanist Ass’n, U.S., No. 18-18, argument scheduled 2/27/19.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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