“In Flanders fields the poppies grow, amid the crosses row on row”.
On June 21, the US Supreme Court quoted from John McCrae’s sobering 1915 poem when they held 7-2 that a cross erected to commemorate American WWI dead does not violate the “establishment clause” of the First Amendment. The “establishment clause” prohibits Congress from establishing an “official” religion, and from supporting any particular denomination through discriminatory taxation.
The Court explained the objective of the Establishment Clause is to keep government neutral on questions of religion, and that using the authority of the Court to force removal of the cross would not be a neutral act. It would be hostile to the religious beliefs held by many. The First Amendment is intended to protect freedom of religion, not freedom from all religious symbolism.
The Court said the religious symbolism of the cross does not negate that it is also a secular historic memorial to fallen soldiers that was dedicated by their families. The Court held that dedication is entitled to protection of the First Amendment.
The cross was erected 94 years ago on private land funded by private donations. It has since been deeded to the State of Maryland because it is now in the middle of a round-about in a public highway, and is maintained by the American Legion using public funds. Opponents of the cross claim that because it’s now on public land and maintained with State tax money, it violates the constitutional doctrine of ‘separation between church and state’.
There is one problem with that. There is no such constitutional doctrine.
Contrary to the myth cross opponents would have you believe, the First Amendment does not create a “wall of separation between church & state”. That was phrase used by Thomas Jefferson in 1801, in a private letter he wrote to a Connecticut Baptist association in which he avowed his belief that government should not interfere with the free practice of religion. Jefferson said nothing about public display of religious symbols. That phrase is not, and never has been, a legal doctrine prohibiting such public display. It’s certainly not one any court is bound to follow.
Supreme Court opinions often include a wealth of historical information, and this was no exception. For instance, opponents of the cross relied primarily on a 1971 case they claim mandates removal of the cross. In discussing why that case says no such thing, the Court documented that among the majority who decided that 1971 case were two famously liberal Justices who were so avowedly anti-catholic they believed the evils perpetrated by Stalin and Hitler were a direct result of catholic school education. Unfortunately, that was not the only warped thinking behind the cross opponents arguments in this case.
Aside from the ‘wall of separation’ fiction, cross opponents attempted to employ the ever popular shibboleth of racism. They claimed the American Legion, which maintains the cross, is affiliated with the KKK, proving that the cross opponents don’t just hate religion but also veterans and the patriotic values they embody. Anyone who links the American Legion to the KKK is downright delusional. Personally, I believe the christian religion is predicated on a fictional, though well-intentioned, morality fable. But I’ll take a moral allegory over amoral delusional hatred any day – and so did seven members of the Court when they refused to order removal of the cross.
Significantly lost in all the heated rhetoric over the religious aspect of this case is a critical legal principle the decision indirectly recognizes, and which two of the majority Justices squarely addressed. That merely being offended by something does not give you a constitutional right to have that thing removed from public property!
As the court said, if you’re offended then don’t look at it. But you have no right (“standing”) to demand a court order it be removed. The “offended observer theory of standing has no basis in law”. As the Court explained, that theory violates the doctrine of “separation of powers” component of our self-government.
Another component is individual freedom of thought, which the cross in this case symbolizes. Cross opponents are offended by any thoughts they don’t approve of, so removing the cross furthers their goal of thought control, which is what opposition to the cross is really all about. In this case the Supreme Court validated the rights of the majority to be free from thought control by a small vocal minority of haters.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.