"Perhaps the longer a violation persists, the greater the affront to those offended."

Wrote 4th Circuit Judge Stephanie D. Thacker, responding to dissenting Chief Judge Roger L. Gregory, who said that the fact that the 40-foot cross had gone unchallenged for 90 years is a reason to let it stay where it is, on a highway median in Prince George’s County.

WaPo reports.

The initial challenge in Maryland was brought by the American Humanist Association, a Washington-based group that represents atheists and others. The group did not dispute the monument is a memorial, but said in court that a giant cross on government property sends a message of exclusion in violation of the First Amendment....

At oral argument last December, Thacker and Wynn suggested the legal issues could be resolved outside of court by moving the site of the cross — or by cutting off the arms of the cross to form an obelisk.

What message is sent by the government's cutting off the "arms" of a cross?! Talk about a cure worse than the disease. Were these judges joking?

I'm linking to the Washington Post because that's where I first saw the story, but I was confused by its statement that the cross "has marked a major intersection in Prince George’s County for 90 years" and "had been public property for 50 years without a constitutional challenge." Here's the actual judicial opinion, with the statement "the Cross has stood unchallenged for 90 years."

If the Post is leaving such glaring mistakes, what does that suggest about about the things that are hard to notice and check? The linked article has been up since 2:57 PM yesterday. Does nobody over there at least try to clean up embarrassing shoddiness?

Also, now that I'm reading the opinion, I see that the idea of cutting off the "arms" of the cross seems to have come not from the judges but the appellants. Footnote 7:

Appellants later clarified their desired injunctive relief as removal or demolition of the Cross, or removal of the arms from the Cross “to form a non-religious slab or obelisk.” [Joint Appendix] 131.

This question of giving special respect to old monuments goes back to something Justice Breyer wrote in one of the 10 Commandments cases in 2005. Breyer's vote was the deciding vote, and as I explained back in 2011, when issue of the day was "Big Mountain Jesus":

Justice Breyer quoted the 1963 school prayer opinion written by Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious."

And Breyer concluded that taking down the old stone monument in Texas would "exhibit a hostility toward religion that has no place in our Establishment Clause traditions" and "encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation," which would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."

That's the prevailing Supreme Court precedent to which we can compare the new 4th Circuit case. Think about that quote in the post title: "Perhaps the longer a violation persists, the greater the affront to those offended." But the longer the monument persists, the more taking it down feels like a message of hostility to religion.

Or do you think the people watching the arms cut off a cross would see the symbolic meaning as the enforcement of Establishment Clause values?

By the way, the obelisk originally "symbolized the sun god Ra, and during the brief religious reformation of Akhenaten was said to be a petrified ray of the Aten, the sundisk."


"Joseph Sells Grain" by Bartholomeus Breenbergh (1655).

The struggle to purge religion from public view will go on forever, because there is just too much religion embedded everywhere. To try to remove one thing is to create something else: