A 40-foot tall cross erected as a war memorial on state-owned land in Bladensburg violates the constitutional separation of church and state, a divided federal appeals court ruled Wednesday.
“The monument has the primary effect of endorsing religion and excessively entangles the government in religion,” the 4th U.S. Circuit Court of Appeals said in its published 2-1 decision. “The Latin cross is the core symbol of Christianity. And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersection in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds.”
The 4th Circuit’s decision reversed U.S. District Judge Deborah K. Chasanow’s 2015 ruling that the cross at the corner of Route 1 and Annapolis Road does not violate the First Amendment prohibition on governmental establishment of religion. Chasanow, who sits in the federal courthouse in Greenbelt, applied the U.S. Supreme Court’s three-part Lemon test to determine a religious symbol’s constitutionality and concluded that the cross has the “secular purpose” of memorializing the county’s war dead, does not have the “primary effect” of endorsing religion and does not foster “excessive entanglement” between the government and religion.
The 4th Circuit, however, agreed only that the cross has the “legitimate secular purpose” of serving as a war memorial.
The cross cannot be separated from its religious symbolism, the appeals court added, citing the Supreme Court’s 1971 Lemon v. Kurtzman decision.
“While the Latin cross may generally serve as a symbol of death and memorialization, it only holds value as a symbol of death and resurrection because of its affiliation with the crucifixion of Jesus Christ,” wrote Judge Stephanie D. Thacker, joined by Judge James A. Wynn Jr. “One simply cannot ignore the fact that for thousands of years the Latin cross has represented Christianity.”
The court also said that government is excessively entangled in the religious symbol insofar as the Maryland-National Capital Park and Planning Commission owns and maintains the cross on government property, has spent at least $117,000 to maintain the cross and has set aside $100,000 for restoration.
“Second, displaying the cross, particularly given its size, history, and context, amounts to excessive entanglement because the commission is displaying the hallmark symbol of Christianity in a manner that dominates its surroundings and not only overwhelms all other monuments at the park, but also excludes all other religious tenets,” Thacker wrote. “The display aggrandizes the Latin cross in a manner that says to any reasonable observer that the commission either places Christianity above other faiths, views being American and Christian as one in the same, or both. “
The monument, built in 1919, is referred to as the “Bladensburg Cross” and the “Peace Cross.” A plaque at its base lists the names of 49 local men who died in World War I.
The cross is part of a larger park that includes memorials to those who died in World War II and the attack on Pearl Harbor as well as to veterans of the Korean and Vietnam wars. A garden honoring those who died on Sept. 11, 2001, was added in 2006.
Lawyers with the American Humanist Association, an atheistic organization, wrote the commission a letter in 2012 requesting removal of the monument, citing the separation of church and state. The lawsuit was filed after a 2013 meeting between the two sides did not result in any changes to the site.
In ruling for the AHA, the 4th Circuit distinguished the cross from the motto “In God We Trust,” which the court said has distinct ties to American history. The court also rejected comparisons between the Bladensburg cross and crosses found at Arlington National Cemetery.
“The crosses there are much smaller than the 40-foot tall monolith at issue here,” Thacker wrote. “And, significantly, Arlington National Cemetery displays diverse religious symbols, both as monuments and on individual headstones.”
With the Bladensburg Cross, “Christianity is singularly – and overwhelmingly represented,” she added.
The Maryland-National Capital Park and Planning Commission is reviewing the decision, said the panel’s general counsel, Adrian R. Gardner.
“All our lawful options are still on the table,” Gardner added. “Our commissioners will review the decision and decide what is the best way to advance the interests of the community.”
The American Legion, which intervened as a defendant in the case, is also reviewing the decision, said the group’s attorney, Michael Berry.
“Seeking Supreme Court review is definitely an option for us at this time, but we are still evaluating,” added Berry, deputy general counsel and director of military affairs at the Plano, Texas-based First Liberty Institute.
“Tragically, to have this memorial removed or destroyed would send a message to those American doughboys that we are no longer going to commemorate their sacrifice, their bravery, and that’s tragic,” Berry said, referring to the nickname of U.S. soldiers in World War I. “What’s to stop that from happening across the country?”
The AHA hailed the court’s decision.
“Government war memorials should respect all veterans, not just those from one religious group,” Roy Speckhardt, AHA’s executive director, said in a statement. “Religious neutrality is important in a pluralistic society like ours.”
In dissent, Chief Judge Roger L. Gregory said the cross does not necessarily endorse religion when used to memorialize war dead.
“(A) reasonable observer would understand that the Memorial, while displaying a religious symbol, is a war memorial built to celebrate the 49 Prince George’s County residents who gave their lives in battle,” Gregory wrote. “Such an observer would not understand the effect of the commission’s display of the Memorial – with such a commemorative past and set among other memorials in a large state park – to be a divisive message promoting Christianity over any other religion or non-religion.”
The cross does not excessively entangle government in religion because the commission’s support and upkeep of the symbol is “not a promotion of any religious doctrine, as the Memorial is a historical monument honoring veterans,” Gregory added.
The dissenting judge noted another, albeit smaller, memorial on the grounds that mentions the “valor, courage and devotion” of the 49 soldiers killed in World War I.
“I cannot agree that a monument so conceived and dedicated and that bears such witness violates the letter or spirit of the very Constitution these heroes died to defend,” Gregory wrote.
The 4th Circuit rendered its decision in American Humanist Association et al. v. Maryland-National Capital Park and Planning Commission and The American Legion et al., No. 15-2597.