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What’s at the heart of the Bladensburg Cross Supreme Court case

Feb 25, 2019

John Henry Seaburn, Jr. and Thomas Fenwick came from different backgrounds. One was the African-American son of a laborer. The other, white, descended from a Revolutionary War patriot.

Even in war, the two were separated. The U.S. Army sent John Henry to the 372d Regiment, a segregated unit commanded by the French. Nonetheless, both fought bravely against a common enemy and died in Europe. The loss for their families was enormous. As the only son in the family, John Henry’s mother depended upon him to provide for her and his three sisters. Thomas’s mother, Pearl, found out about her son’s burial across the ocean on Christmas morning, 1918.

Six years after his death, the family of John Henry Seaburn published a poem in the local newspaper. It read, in part, “Forget you? No, we never will./We loved you then, we love you still.”

Understanding that we tend to forget what we do not see, on July 12, 1925, The American Legion erected the Bladensburg World War I Veterans Memorial, fulfilling the vision Gold Star mothers announced in 1919 as a way to honor 49 of their sons who died in World War I.  

Segregated in life, men like John Henry Seaburn Jr. and Thomas Fenwick are united in death in the Memorial.

Lawsuit threatens to bulldoze the ‘Peace Cross’

The Memorial stood peacefully for nearly a century, until the American Humanist Association (“AHA”) filed a lawsuit alleging the cross-shaped monument violated the First Amendment’s Establishment Clause. Their lawsuit demands that the memorial be removed, altered, or demolished. In late 2017, the U.S Court of Appeals for the Fourth Circuit agreed with AHA. First Liberty and attorneys at the international law firm Jones Day, representing The American Legion, appealed.

On February 27, the Supreme Court of the United States will hear arguments in the case, The American Legion v. American Humanist Association.  

Veterans memorials and the Establishment Clause

The Establishment Clause of the First Amendment is supposed to prevent the state from coercing its citizens into a particular religious belief. AHA argues that, because the memorial is in the shape of a cross and it sits on public property, it is an unconstitutional establishment of religion. According to AHA, the state of Maryland establishes a religion by repairing concrete, polishing brass, and mowing the grass around what one mother called her son’s “grave stone.”

And that’s an important point. The reason the local community, led by mothers of slain soldiers, chose the Celtic cross as the shape for this particular memorial is important: The profile of the grave stones under which their sons were buried in Europe was a cross. At the time, the cross gravestone was a universally accepted symbol of service and sacrifice.

During oral arguments before the Fourth Circuit, one of the judges offered a potential solution: remove the horizontal arms off the cross-shaped memorial. What once would have been considered an unconscionable desecration of a memorial to men who died in battle is now offered as an erudite compromise.

Attorneys from First Liberty Institute have been defending memorials and monuments like the Bladensburg “Peace Cross” for almost two decades. This case provides an opportunity for the Supreme Court to not only protect memorials like this one, but also bring needed clarity to this area of the law.

Can’t make lemonade from the Lemon Test

Over the last 50 years, federal courts have followed a Supreme Court decision called Lemon v. Kurtzman in deciding “establishment” cases. Unfortunately, what lawyers call the “Lemon Test” has led to absurd results, confusion, and in some cases outright government hostility toward religion.   

Consequently, teachers around the country have become nervous to allow even candy canes in the classroom because a child may confuse them for a shepherd’s crook and sue. Transit authorities now fear their buses may turn unlawfully sacred should their ad space feature shepherds and stars at Christmas. State athletic associations turn off microphones lest the loudspeaker prayers of two Christian school football teams offend someone.

Groups like AHA argue this is simply the neutrality required under the Lemon Test. Instead, the court-created test has become a way for state officials to legitimize their hostility toward religion. Organizations like the AHA, seizing upon this confusion, use the courts to remove public references to religion, confining religion to a few hours a week inside a house of worship. The results are either hostility—tear down the cross-shaped memorial—or, downright silly—remove the creche because there aren’t enough reindeer nearby to ensure “neutrality.”  

Worse, history has shown that the drive to push religion out of public life is insatiable. Some progressive left activists seek to weaponize both the Establishment Clause and the Free Exercise clause. Indeed, such efforts are already well under way from New York, to Virginia, and Florida to California.

Preventing coercion, protecting Free Exercise

The American Legion v. AHA provides the Supreme Court with an opportunity to clarify an area of the law that Justice Thomas once suggested is “in hopeless disarray.”

First Liberty, and its network attorneys at Jones Day, suggest a new approach. If adopted, this new standard would be far more in keeping with what the Founding Fathers were concerned: coerced religion by the state. Under this alternative approach, the Establishment Clause is not violated unless there is a tangible threat to your liberty by the government that threatens to coerce someone into a religious belief or through a law or policy that purports to actually establish an official religion. This rightly balances the twin goals set by the First Amendment of restraining government and setting citizens free to exercise their religion.

By returning to the original text and meaning of the Constitution, the Court would not only preserve the Bladensburg memorial and hundreds of other similar monuments around the country including Arlington National Cemetery, it could dissuade specious claims in the future.

John Henry Seaburn and Thomas Fenwick may have been separated in life, but in their death they are united at Bladensburg. We cannot allow their memory to be bulldozed. Rather, Americans should honor the way Gold Star mothers chose to remember the service and sacrifice of their sons who died defending our freedom.

Jeremy Dys

Jeremy Dys, Esq., is Deputy General Counsel for First Liberty and host of the First Liberty Briefing. Dys earned his law degree from West Virginia University College of Law in 2005. After law school, Dys clerked for the Hon. Russell M.... Read More