I'm continuing an exploration of the contours of our original charters of liberty, the Declaration of Independence, Constitution, and Bill of Rights.
My previous column, "Celebrating Our Bill of Rights: The Forgotten Preamble," focused on the 1789 Preamble to the Bill of Rights, which explained that its purpose was to "to prevent misconstruction or abuse of its powers."
As the first two Articles in the Bill of Rights were not ratified in 1791 along with the first ten Amendments, "Article the Third" of the original Bill of Rights became the First Amendment:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
This article, focuses on the first part of the First Amendment, the Establishment Clause: "Congress shall make no law respecting an establishment of religion."
Fun Facts: As the text of the Establishment Clause indicates, originally only Congress was forbidden from making any "law respecting an establishment of religion."
The First Amendment did not apply to States until "incorporated" by the U.S. Supreme Court in 1947, in a case, Everson v. Board of Education of Ewing, 330 U.S. 1 (1947).
In 1833, Massachusetts finally disestablished its state religion — 42 years after the ratification of the First Amendment. Puritans in New Hampshire, Connecticut, and Massachusetts had "established" the Congregational Church as their religion, which those States disestablished in 1817, 1818, and 1833 respectively.
Of note, standing 40 feet tall, a concrete cross was erected in 1925 in memory of 49 local servicemen from Prince George’s County who died during World War I.
The base of the cross displays the words "valor," "endurance," "courage," and "devotion" as well as a bronze tablet listing the names of those lost in combat.
The American Legion originally commissioned the project. When it was built, the monument was on private land, but that land was donated in 1961 to a bi-county agency in Maryland, making it parkland owned by The Free State.
In 2017, the U.S. Court of Appeals for the Fourth Circuit ruled that publicly funded maintenance of the cross was unconstitutional because it "excessively entangles the government in religion because the cross is the core symbol of Christianity and breaches the wall separating church and state."
On June 20, 2019, in American Legion v. American Humanist Association, the high court overturned the Fourth Circuit, ruling that keeping the Peace Cross on public land in Maryland does not violate the Establishment Clause (as applied to the states in 1947 by the Supreme Court through the post-Civil War Fourteenth Amendment, which the states ratified in 1868).
Justice Samuel Alito, writing the Opinion of the Court, explained that, "retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones.
"The passage of time gives rise to a strong presumption of constitutionality."
Justice Alito further explained that immediately following WWI, "[c]ommunities across America built memorials to commemorate those who had served the nation in the struggle to make the world safe for democracy," quoting G. Kurt Piehler’s book, "The American Memory of War."
Specifically, Justice Alito wrote, "Although not all of these communities included a cross in their memorials, the cross had become a symbol closely linked to the war. . . . In the wake of the war, the United States adopted the cross as part of its military honors, establishing the Distinguished Service Cross and the Navy Cross in 1918 and 1919, respectively.
"[T]he fallen soldiers’ final resting places abroad were marked by white crosses or Stars of David. The solemn image of endless rows of white crosses became inextricably linked with and symbolic of the ultimate price paid by 116,000 soldiers.
"And this relationship between the cross and the war undoubtedly influenced the design of the many war memorials that sprang up across the Nation."
Justice Alito concluded, "The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent:
"For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation.
"For others still, it is a historical landmark. For many of these people, destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.
"For all these reasons, the Cross does not offend the Constitution."
Joseph E. Schmitz serves as Distinguished Constitutional Fellow for "The Oversight Project: It’s Your Government." During the 2016 presidential campaign, he served as foreign policy and national security adviser to Donald Trump. Mr. Schmitz served as Inspector General of the Department of Defense from 2002-2005. He now serves as chief legal officer of Pacem Solutions International. He graduated with distinction from the U.S. Naval Academy, earned his J.D. degree from Stanford Law School. He is the author of, "The Inspector General Handbook: Fraud, Waste, Abuse, and Other Constitutional 'Enemies, Foreign and Domestic'" (2013). Read More of His Reports — Here.
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