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

February 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. Clawges, Jr., chief judge of the Circuit Court of Monongalia County … Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24