By Tom Fitton
Those on a crusade against public displays of religion are clever in discovering imagined offenses and insisting in the courts that their wild theories be given legal protection.
Such is the case in the use of a cross to honor those who gave their lives in war. In a recent such case the U.S. Court of Appeals for the Fourth Circuit ruled that government recognition and upkeep of a World War I memorial cross is in violation of the Establishment Clause of the First Amendment of the Constitution.
Well, it’s not, and we’ve filed an amicus curiae brief in the United States Supreme Court asking the court to reverse the decision (The American Legion, et al. v. American Humanist Association, et al.; Maryland National Capital Park and Planning Commission v. American Humanist Association, et al. (Nos. 17-1717, 18-18)). The court will hear arguments on the case next week, on February 27, 2019.
Here’s some background. The First Amendment provides: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” These two clauses comprise the “establishment clause” and the “free exercise clause.”
We argue that the Supreme Court in this case can “clarify the role of the Establishment Clause in relation to the States and set out an unambiguous legal standard by which Establishment Clause violations can be measured.” Additionally, we seek “to highlight the dangerous path this case plays in overt hostility toward religion by the courts.”
We argue that, “applying any of the possible Establishment Clause tests brings about the same conclusion: the Memorial is constitutional.”
We point out that both the plain meaning of the language and the historical context of the Establishment Clause clearly demonstrate “that the Framers intended the Clause to be a restriction on federal interference with and establishment of religion…”
Our brief details the use of the cross through American history to honor our nation’s war dead and notes that “the cross has become synonymous with veteran sacrifice.” Our brief presents the Supreme Court with actual photos of such memorial crosses across the country.
The time-honored cross monuments to America’s honored dead should especially be defended by courts, both because military sacrifice made possible the guarantee of our constitutional rights and because it is the duty of the courts to honor the Constitution as written by the Framers.
This is an opportunity for the court to protect the free expression of religion against the predations of activist judges who seek to remove religion from the public square.