A 40-foot tall cross erected as a war memorial on state-owned land in Bladensburg complies with the constitutional separation of church and state because the edifice merely has an “incidental religious feature” maintained for the secular purpose of honoring local residents killed in battle, the area’s park panel stated Wednesday in seeking to preserve the roadside symbol.
The Maryland-National Capital Park and Planning Commission made its argument in asking the full 4th U.S. Circuit Court of Appeals to review a three-judge panel’s divided decision last month that the monument, built in World War I’s aftermath, violates the First Amendment’s prohibition on governmental endorsement of religion.
The panel’s 2-1 majority held that, “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. One simply cannot ignore the fact that for thousands of years the Latin cross has represented Christianity.”
But the commission, in seeking full-court review, said the U.S. Supreme Court has upheld “lawful circumstances under which the government may passively display an artifact that includes religious symbolism,” including when the purpose is the “stewardship of local history.”
The 4th circuit panel’s decision has drawn scorn from Gov. Larry Hogan, who has urged Attorney General Brian Frosh to draft a brief to the court urging reversal.
Frosh’s office is still reviewing the matter, a spokeswoman for the attorney general said Thursday.
“The conclusion that this memorial honoring veterans violates the (Constitution’s) Establishment Clause offends common sense, is an affront to all veterans, and should not be allowed to stand,” Hogan, a Republican, wrote in a letter to Frosh, a Democrat. “I believe, very strongly, that this cherished community memorial does not violate the Constitution.”
The cross has been standing at the corner of Route 1 and Annapolis Road for more than 90 years and is surrounded by secular symbols, including arches and a plaque, that also honor and name the 49 Prince George’s County residents killed in the war, the commission stated. The memorial is adorned with the secular words “courage,” “endurance,” “valor” and “devotion” and President Woodrow Wilson’s statement that “we shall fight for the things we have always carried nearest to our hearts,” the commission added.
“The memorial was built, not by a religious group, or for a religious purpose, but only to commemorate those local residents who died in the service of their country in the great war,” wrote Adrian R. Gardner, the commission’s general counsel, in the request for full-court review. “The memorial has unique artistic qualities and historic relevance.”
The American Legion also filed papers Wednesday requesting that all 15 4th Circuit judges review the panel’s decision.
The American Humanist Association, an atheistic organization that endorses strict separation of church and state, challenged the cross as violating the First Amendment.
The 4th Circuit has not said when it will vote on the request for full-court review. Regardless of how the court rules, the losing party will have the right to appeal to the Supreme Court.
The 4th Circuit panel’s decision reversed U.S. District Judge Deborah K. Chasanow’s 2015 ruling that the cross does not violate the First Amendment. Chasanow, who sits in the federal courthouse in Greenbelt, applied the 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 panel’s majority, 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 majority added, citing the Supreme Court’s 1971 Lemon v. Kurtzman decision.
The case is docketed at the 4th Circuit as American Humanist Association et al. v. Maryland-National Capital Park and Planning Commission and The American Legion et al., No. 15-2597.