The Bladensburg Peace Cross, a World War I memorial and a 7-2 ruling

Imagine a lawsuit demanding that a town bulldoze a memorial to its own dead because the memorial's shape offends someone who drives past it. Now imagine that the shape is the one the dead soldiers' mothers chose. That is not a thought experiment. That was a federal case, and it climbed all the way to the Supreme Court.

The case is American Legion v. American Humanist Association, decided in 2019. The monument is the Bladensburg Peace Cross, a tall concrete cross that stands in a traffic median in Prince George's County, Maryland, just outside Washington. The Court held, by a vote of 7 to 2, that it may stay. The votes on the reasoning were messier than the vote on the result, and that messiness is worth understanding, because the case settled more than the fate of one monument. It told every town in America what to do about the old statues, crosses, plaques and memorials that have stood on public land for generations.

Let me define the terms, state the claim, and argue it in order.

What the monument is, and who built it

The claim is simple: a government that tears down an old memorial because of its religious shape is not being neutral. It is taking a side. To see why, begin with the facts.

The Peace Cross is a Latin cross standing on a large pedestal, about 32 feet high by the Court's description. Its story begins in the First World War, when a group of Prince George's County families, working through a local committee, set out to honor the county's dead. They chose a cross. The committee ran out of money in the early 1920s, and the local post of the American Legion finished the memorial. It was dedicated in 1925. It honors 49 county men who died in the war, and their names are on a bronze plaque on the pedestal.

Three details matter more than the rest.

First, the choice of a cross was not random or sectarian in the way the plaintiffs claimed. Americans of that generation had read the poem about the poppies growing among the crosses in Flanders, and they had seen the photographs of row on row of white crosses over the graves in the American cemeteries in France. The cross had become the picture of the war's dead, in the same way that a folded flag is the picture of a funeral today.

Second, the memorial was built by private citizens, not by the government. The cross and its land came into public hands later. A state commission, the Maryland-National Capital Park and Planning Commission, took over the site in 1961 to preserve the monument and to address traffic-safety concerns at the busy intersection around it. Taxpayers have paid for its maintenance since.

Third, the dead were not asked what they believed. The memorial names men, not denominations.

How the lawsuit reached the Court

The American Humanist Association and several local residents who said they were offended by the sight of the cross sued in federal court. They argued that the commission's ownership and upkeep violated the Establishment Clause of the First Amendment, which says Congress "shall make no law respecting an establishment of religion." Because the Fourteenth Amendment applies most of the Bill of Rights to the states, the plaintiffs said it bound a Maryland agency too.

The district court sided with the memorial. The Fourth Circuit Court of Appeals, in 2017, reversed by a divided panel and held the cross unconstitutional. The full Fourth Circuit declined to rehear the case, though several judges wrote strongly that the panel had erred. The American Legion and the commission took the case to the Supreme Court, which agreed to hear it.

The test the lower court applied is where the trouble began. For nearly fifty years, courts measured religious displays against a three-part test taken from Lemon v. Kurtzman (1971): the government action needed a secular purpose, its primary effect could not advance or inhibit religion, and it could not foster excessive entanglement with religion. The test sounded like engineering. In practice, it was a coin flip with footnotes. Different panels of judges applied it to nearly identical crosses, creches and Ten Commandments displays and got opposite answers. Justices of both camps had been mocking it in opinions for years.

Alito's opinion

Justice Samuel Alito wrote the opinion of the Court, joined in full or in part by several justices. It did not formally bury Lemon. It did something more practical. It explained why the Lemon test is a poor fit for monuments that have stood a long time, and it set out a different way to think about them.

Alito's reasoning runs through four points, which I will put as a numbered argument, because that is how the opinion works.

1. Original purpose is hard to find. As time passes, the people who built a monument die, the records scatter, and the reasons for the choice are forgotten. A court asked to decide why a cross was built in 1925 is an archaeologist, not a judge.
2. Purposes multiply. A monument can honor the dead, mark a place, display the community's identity, and carry a religious meaning all at once. A single founding motive is rarely the whole story. Founding committees are made of people, and people have more than one reason for anything.
3. The message evolves. What a monument means to the community changes as the community changes. The Peace Cross stopped being only a symbol of its builders' hopes and became a landmark, a place where veterans gather, an object people give directions by.
4. Familiarity matters. Once a monument has stood for decades, people regard it as part of the setting. Removing it would not return the town to some neutral, religion-free condition. It would be a fresh act, a loud one, and the people who see it come down would read it as hostility.

From those four points Alito drew a presumption: when a religiously expressive monument has been in place for a long time, the law should presume it constitutional. A challenger can try to overcome the presumption, but the burden sits where common sense puts it.

The opinion also observed that after the First World War the cross took on a meaning beyond its religious one when used to honor the dead, because of those fields of crosses in Europe.

The answer to the question "why tear it down?" is where the opinion is at its sharpest. The Court's reasoning was that demolition is not neutral. The opinion said that removing or radically altering a long-standing religious monument would be seen by many not as a neutral act but as hostility toward religion, and that is hardly the neutrality the First Amendment's authors had in mind. The Founders feared a government that forced a church on people. They did not fear a town with an old cross on a hill. They also did not want a government that made it a project to scrub every trace of faith from the shared landscape.

That is the center of the case. Neutrality means the state does not pick a winner. A state that wrecks a veterans' memorial because it is shaped like a cross has picked a winner. It has picked the plaintiffs.

The concurrences

The opinion was joined in parts by different justices, and the separate writings tell you how far the Court was willing to go.

Justice Kavanaugh wrote that the decision confirmed what the Court had been doing for years: the test of Lemon was no longer the governing standard for these cases, and the Court should consider history and tradition instead. He added that the Court had upheld many practices that a strict Lemon reading would have condemned, among them legislative prayer, which the Court approved in Marsh v. Chambers in 1983.

Justice Breyer, joined by Justice Kagan, wrote separately to say that the decision should not be read as a rule that any old religious display is safe. His point was that context and history matter, and that the Court's holding depended on the specific facts of Bladensburg. That is a fair caution, and the plain reading of the majority opinion agrees with it.

Justice Gorsuch, writing for himself, went at a different problem, which is who gets to sue at all. The plaintiffs' injury was that they were offended by seeing the cross. Gorsuch argued that the "offended observer" theory of standing has no real footing in the Constitution's requirement that a plaintiff show a concrete injury. A person who dislikes a monument and drives a different road has suffered an opinion, not a legal wrong. If that argument prevails, a whole genre of lawsuits ends before it begins.

Justice Thomas wrote that he would go further still. His view is that the Establishment Clause restrains Congress, since it speaks of what "Congress shall make," and that it should not be applied against states and localities at all, because it protected state churches from federal interference. He also noted that even if the clause is applied to the states, it should bar only actual legal coercion by government in matters of religion. That position is a minority one on the Court, but it is a serious argument from the text and the history of 1791.

Taken together, the separate opinions show a Court with at least three ways of reaching the same result, and all three lead to a cross that stays standing.

Ginsburg's dissent, and the best case against the cross

A good argument begins by stating the other side at its strongest. Here it is.

Justice Ginsburg, joined by Justice Sotomayor, dissented. Her argument was that the Latin cross is the foremost symbol of Christianity, that using it for a war memorial on public land tells Jewish soldiers, non-believing soldiers and others who fought under another symbol that their sacrifice is less honored. She wrote that when a cross is displayed on public property, the government may be presumed to endorse its religious content, and that the Commission's ownership and upkeep elevate Christianity over other faiths. In her view the problem could be cured by moving the cross to private land or transferring it to a private owner.

That is a serious position, held by decent people, and it deserves a real answer. The answer has four parts.

1. The memorial honors the men, not the doctrine. Nothing about the Peace Cross requires a visitor to believe anything. It does not ask for worship, prayer or assent. It states that 49 men from this county died. The families who raised it chose the image that, for their generation, said "a soldier died here for his country."
2. The remedy proposed is worse than the harm. The dissent's alternative was to relocate the cross to private land or hand it to a private owner. Think about what that does to the families of the 49 and the veterans who have gathered at the site for a century. Their grief and gratitude would be treated as a constitutional problem to be fixed. That is a message too, and a more hostile one than the cross ever sent.
3. The rule proposed has no stopping point. If a religious shape on public land is always an endorsement, then the rule reaches every old cross in a town seal, every saint's name on a city, every chapel in a national cemetery, and a long list of public symbols that nobody has ever mistaken for a state church. A rule that demands you scrub the map of St. Louis and San Francisco and Los Angeles is a rule that proves too much.
4. The Constitution's text asks about establishment, not about offense. An establishment of religion meant a government church: tax-supported clergy, mandatory attendance, civil penalties for dissent, a religious test for office. The Constitution closes the door on all of it, in the First Amendment and in Article VI's ban on religious tests for federal office. A monument on a traffic island has none of those features.

Ginsburg was right about one thing, and I will say so plainly. A cross is a religious symbol, and a Jewish soldier is as much a soldier as any other. The right answer is not to pretend otherwise. It is to recognize that a country with a long history is full of things that carry more than one meaning, and that citizens are expected to live with the ones that are not meant to coerce them. The test of a free country is not whether every symbol suits every citizen. It is whether the government forces anyone to take part.

What the history says about the Founders

Let me anchor this in the Founding rather than in the doctrine of the 1970s.

The First Amendment was adopted in 1791. The First Congress that proposed it also hired chaplains, and as it finished sending the amendments to the states in September 1789 it asked President Washington to proclaim a day of thanksgiving. Washington issued that proclamation in 1789. The people who wrote the clause did not think it stopped the new government from acknowledging God, from opening sessions with prayer, or from honoring the dead with the signs the people used. The Court said as much in Marsh v. Chambers in 1983, when it upheld legislative prayer by pointing to that very history.

What the Founders meant to prevent was a national church and the coercion that comes with one. They had lived under established churches in England and in several of the colonies, and Virginia's long fight over Madison's Memorial and Remonstrance in 1785 had taught them what compulsion costs. A cross at a crossroads is not that. A tax that pays a bishop is.

The Court's long-standing monument rule fits that history. It asks a plain question: has this thing become part of the community's inheritance? If so, the better presumption is that the law leaves it alone, and that the people who live around it, not a federal judge, may decide how to honor their dead.

What followed

The decision did not end the argument about displays, but it changed its terms. Three years later, in Kennedy v. Bremerton School District (2022), the Court said that it had long ago abandoned the Lemon test and that the Establishment Clause is to be read by reference to historical practices and understandings. That was the direction American Legion pointed. Local governments gained something useful: a rule of presumption for old monuments, and a reminder that the Constitution does not make them scrub the landscape of every sign of faith.

For readers who want to see where the doctrine sits, the neighboring posts on the blog fill in the picture. The story of how the Court reached this reading starts with Everson v. Board of Education, the school bus case that changed church and state, continues through A town board, a guest chaplain and why opening prayers survived the Court, and arrives at Sixteen words on religion in the First Amendment, read phrase by phrase, which reads the clause itself, word by word. The mirror-image question, what a government may not force a citizen to say, is in two schoolgirls, a flag salute and the 1943 ruling that protected conscience. On the civic habits that the cross was built to remember, see Washington's 1789 and Lincoln's 1863 Thanksgiving proclamations side by side. The Court's own opinions live at the site's courts page.

The case in brief

1. The Bladensburg Peace Cross is a 1925 memorial to 49 Prince George's County men who died in the First World War, raised by families and the American Legion and later maintained by a public commission.
2. In American Legion v. American Humanist Association (2019), the Court held 7 to 2 that it may stand. Justice Alito's opinion gave four reasons that old monuments are a poor fit for the Lemon test and set a presumption of constitutionality for long-standing ones.
3. The concurrences by Kavanaugh, Gorsuch and Thomas added three further routes to the same place: history and tradition, a doubt about "offended observer" standing, and a doubt that the clause binds the states.
4. Ginsburg's dissent made the best case against the cross, but its remedy would erase the community's memory and sets a rule with no stopping point.
5. Tearing the memorial down would not have returned the town to neutrality. It would have been a new act of official hostility to a symbol of grief.

What you can do: look up the war memorials in your own county, find the date and the names on each, and ask your county commission how they are maintained.