Winnable war: Supremes uphold cross
The Supreme Court today rejected a challenge to the constitutionality of the Bladensburg Peace Cross. Good for them. It is simply impossible for this cross to violate the Constitution in any way.
It was erected in Maryland in 1925 to honor the memories of 49 local men who gave their last full measure of devotion defending our liberties during World War I. It was financed and constructed by the American Legion.
The complaint against the cross, which has stood unmolested for 94 years, came from just three people who complained of "unwelcome contact" with the cross, which means they could see it from their car when they drove to work. But as Clarence Thomas has frequently pointed out, the minimum thing you must have for a violation of the First Amendment is some kind of coercion. Well, nobody here is forcing anybody to do anything. Nobody is obligated to look at the cross, venerate it, believe what it stands for, or even drive by it.
Humanists challenged it before the Supreme Court as a violation of the Establishment Clause of the First Amendment. The Associated Press, in its garbled coverage, says this clause "prohibits the government from favoring one religion over others."
But that is not at all what the Establishment Clause prohibits. It does not prohibit Congress from "favoring one religion over others," it specifically and only prohibits Congress from passing a law that picks one Christian denomination and makes it the official church of the United States. As long as Congress does not do that, it cannot possibly violate the Establishment Clause.
The Constitution prohibits Congress, not Maryland, from establishing religion. You have to work at it to overlook this since "Congress" is the first word in the First Amendment. It is Congress that is restrained by the First Amendment and nobody else.
States under the Founders' Constitution were allowed to do anything they wanted with regard to religious expression. They still are, since the First Amendment has never been amended and means the same thing today it meant the day it was adopted.
That only Congress was forbidden to establish religion is indisputably plain from the early history of the Republic. Even after the Constitution and the Bill of Rights went into full effect, in 1789 and 1791, 10 of the 13 states (at a minimum) had established religions in their states. That is,
they had selected one Christian denomination (or "sect," to use their word) and passed a law establishing it as the official state church. What was prohibited to Congress was permitted to the states.
Maryland is not Congress, and a cross is not a law. Maryland couldn't establish a national church even if it wanted to. If we use the Constitution as written by the Founders, it's impossible for Maryland to violate the Establishment Clause of the First Amendment.
And the federal government – including the judiciary – is further forbidden by the First Amendment to "prohibit … the free exercise" of religion. The people of Maryland were exercising their religious liberty when they erected this cross. The Supreme Court is forbidden by the federal Constitution from restricting religious liberty anywhere. If the justices had ruled against the cross, then whatever else they would have been doing, they would have been prohibiting the free exercise of religion, which they are expressly forbidden to do.
Since Congress – and by extension, the entire federal government – is forbidden to intrude into the religious affairs of any state, this case should not even have been in a federal court at all. The Supreme Court should have rejected this case when it was presented to them on grounds that it simply has no jurisdiction in a case like this. The Court should have kicked it back to Maryland for its Supreme Court to decide based on its own constitution.
As our national anthem has it, this is the "land of the free." The cross is perfectly constitutional without any question. Let's be grateful to the God of the Bible that the Supreme Court sees it the same way.
Bryan Fischer hosts "Focal Point with Bryan Fischer" every weekday on AFR Talk (American Family Radio) from 1:00 - 2:00 p.m. (Central). He is author of The Boy to Man Book: Preparing Your Son for Manhood.