Washington Wednesday: Religious liberty

MARY REICHARD, HOST: It’s Wednesday, the 13th of February, 2019. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s Washington Wednesday. Today, we report not on politics but on the law.

That’s because on the 27th of this month the U.S. Supreme Court will hear arguments in perhaps the most important establishment-clause case this term: The American Legion versus American Humanist Association.

At the center of the dispute is a memorial constructed after World War I.

That war began in 1914. The United States entered in 1917. Some of the more than 100,000 Americans who died in the war are buried overseas.

The mothers of 49 young men from Prince George’s County, Maryland, wanted their sons remembered at home. So they got a memorial erected with the help of The American Legion. Each man’s name is engraved on it, along with words like “valor” and “devotion” inscribed at its base.

REICHARD: The legal dispute is over that memorial, called the Bladensburg World War I memorial or Peace Cross. It’s a Celtic cross, 40 feet tall, including the pedestal. It’s situated on a highway median, the focal point of a larger field of memorials nearby. It stands on public land, and the government has used public funds to maintain it over the years.

Like all legal disputes, this one is personal to many people. You’ll hear some of that, along with lawyers on each side.

First, the personal.

One of the men whose name is inscribed on the Peace Cross is Private John Henry Seaburn, Jr.  

His niece, now in her 80s, doesn’t want that cross altered.

Alvergia Guyton and her husband, James, spoke to me by phone.  

GUYTON: My grandmother talked about him a lot because that was the only boy, and how she missed him, and he was coming home, I guess, shortly before the war was over. It wasn’t too long, and they were looking forward to it. He didn’t make it.

Private Seaburn joined the army at 16. He was in the 93rd Regiment, an all-African American unit.  

Alvergia was a little girl watching her grandmother grieve her uncle. And hanging on the wall was a picture of the dashing young man in uniform.

GUYTON: Because my mother had a picture of her brother in the living room, and I used to play in there by myself—the only girl, and the baby and four brothers. And I talked to him and pretended that he was my playmate, that he was coming home soon.

Private Seaburn was fond of a girl in the neighborhood and talked about getting married and finding work. But he was killed just shy of his 21st birthday—only 38 days before the war ended. A cross marks his grave in France.

The soldiers whose names are on the cross died too young to leave any children behind. So other relatives of those 49 young men, nieces and nephews like the Guytons, want the memorial left undisturbed.

The other side of the story is one who feels aggrieved that a foundational principle of the United States is being violated. Jason Torpy is president of the Military Association of Atheists and Freethinkers. He’s a West Point grad and veteran of the Iraq War.

He says the cross represents Christians, but thousands of military men and women are not Christians.

TORPY: And this cross says that their service is not as important as Christian service. And that is wrong. And Un-American. And that’s why the cross should be moved or put up or somewhere where Christians can honor Christians and that should be replaced by a monument that honors everyone.

I asked Torpy what he thinks would solve this.

TORPY: First, I apologize to Christians that some other Christians put a 40-foot-high cross in the middle of the road. It’s real hard to fix that without tearing the thing down. Okay? But there can’t be a 40-foot-high cross in the middle of the road. What the remedy is? Maybe cut the edges off, maybe add more things to it and maybe pick up a crane and rotate it over to somebody’s house or something else. And then a giant cross will be on the side of the road, on private property.

That’s something the other side says would deface the memorial. That’s offensive to them.

Torpy acknowledges his side of this dispute doesn’t have the same emotional   investment in it that the Guytons have.

But still.

TORPY: In society, when you’re communicating that it, you know, it’s real easy for the general public or for journalists or whatever to say, well, nobody’s getting killed. We matter too.

But this case won’t be won or lost on emotions; it’ll be decided by law. Kelly Shackelford of First Liberty Institute represents The American Legion organization and others to protect the Peace Cross from being disturbed.

Shackelford says past rulings of the Supreme Court hurt more than help.  For example, a ruling from 1971 in a case called Lemon. It struck down certain reimbursements to private schools from public funds.

SHACKELFORD: Well, the Lemon test is the problem that’s caused a lot of this confusion. It’s a test that was created by judges to try to add some sort of clarity to the Establishment Clause jurisprudence, but it’s done the opposite. It asks all these questions: Was there a secular purpose for putting this up? What is the effect of putting it up? And it asks a number of really subjective things…which has kind of glommed on to the Lemon test that asks whether a passerby would look and feel like they’re an outsider because of some religious symbol they see.

These days, it’s not hard to find someone aggrieved about something.

On the other side is a lawyer with the American Humanist Association, David Niose. This cross? He says it’s different from the rest.

NIOSE: There are very few, very, very few standalone cross memorials in this country. Anybody approaching it from a distance driving up to it would not say, oh, look at that memorial that happens to be shaped like a cross. You would say, wow, look at that huge cross.

Niose argues a cross is obviously Christian. And Supreme Court rulings about religious symbols on public land are sensible, if you understand the legal reasoning being used.

One ruling from 1989, for example. County of Allegheny versus American Civil Liberties Union was a complicated, 7-part decision. The majority held a nativity display set up in the county courthouse violated the Establishment Clause. But a Menorah did not.  

Niose could find a reasoned thread based on the kinds of other objects placed near the nativity.

NIOSE: It’s when they are part of an array. And there is not really a suggestion that the government is endorsing a particular religion if it’s a holiday display, and there happens to be a creche, but there’s also, you know, candy canes and other things and perhaps even objects from other religions such as a Menorah. Then the government’s not sending a message that it’s endorsing religion in that context. So iif the Nativity display in Allegheny failed, then certainly the Bladensburg cross is not even a close call.

Kelly Shackelford with First Liberty disagrees. He says a return to founding principles clears away the confusion.

SHACKELFORD: It’s somewhat, actually, embarrassing, I think, to the court that we’re having decisions now where they’re trying to figure out how far Rudolph the Red-Nosed Reindeer is from the Menorah to find out whether placing a Menorah on government grounds is okay. That’s never what the founders intended…

Furthermore, this Peace Cross has been standing without incident for almost 100 years. Surely that counts for something?

Again, David Niose with the American Humanist Association disagrees.

NIOSE: So the fact that it took awhile for anyone to come forward and object to it does not make it right. What it says is that, you know, we’re living in a more pluralistic society now and people need to recognize that local governments cannot be endorsing religion.

So the question boils down to this, in legal terms: What is the standard to figure out if something means the government has established a religion?

America has a religious history and heritage. The Supreme Court building has Moses holding up the Ten Commandments. The Jefferson Memorial has quotes about God and liberty. I could site many, many more examples.

Yet, the country’s population is changing. It’s more pluralistic than it was 100 years ago.

But does that mean erasing the history of what we once were, or the foundations of law our Founders derived in part from the Bible?

I asked Torpy, the veteran who wants the Peace Cross moved or altered, to address Alvergia Guyton’s feelings on the matter.

TORPY: So what I would say to her is that I appreciate the sacrifice that your ancestors made. I appreciate the sacrifice of everybody on that cross. And what they sacrificed for was liberty and equality and freedom of religion. They did not sacrifice for special privilege for Christianity. So I want to honor his memory by taking that cross down.

I’ll let the Guytons have the last word. Alvergia first:

GUYTON: Oh, I just think it’s disgraceful and because again you’re losing history. I don’t know if the young people know or think about how much history we will lose. Because we’re losin’ a lot now. They’re not teaching it in school. And I think the people, the children behind me, the younger children should know this. What a struggle it was and how we survived. That is very important to me.

And finally, her husband of 65 years and active duty veteran of 30 years, James Guyton:

GUYTON: It is important that that a person who is a Baptist, or an Episcopalian, or someone who is a non- Christian who may have certain beliefs, to find reason to respect and understand the other side.

Now for those who don’t have that religious view, it is also good for others to remember that you don’t want to tear down and damage in 2019. We’re gonna celebrate some 100 year occurrences. A lot of things have gone on. And rights of individuals are becoming more apparent. And certainly we should respect them. But I don’t think we should begin to destroy.  We should build, create, harmonize, get more together. Because we are making some bad, bad things happen. 

After the arguments, I’ll present a recap to you on the following Monday’s Legal Docket.

(Photo/Associated Press/Algerina Perna, The Baltimore Sun) The World War I memorial cross in Bladensburg, Md. 

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