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Frosh reviews Bladensburg Cross case as Hogan seeks action

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The Maryland-National Capital Park and Planning Commission and The American Legion have asked the full 4th Circuit to review the three-judge panel’s divided decision last month that the Bladensburg Cross monument violates the First Amendment’s prohibition on governmental endorsement of religion. (File photo)

Maryland Attorney General Brian E. Frosh said Thursday he has not reached a decision on whether a 40-foot tall cross erected as a war memorial on state-owned land in Bladensburg violates the constitutional separation of church and state, as a divided federal court panel has ruled.

“I think there are very good arguments on both sides,” Frosh said, adding that his office is reviewing the record and the 4th U.S. Circuit Court of Appeals’ controversial 2-1 decision.

Specifically, Frosh said it remains unclear whether a private concern, such as The American Legion, has an easement on the property, which could remove the cross from being an unconstitutional government-sponsored religious symbol.

Frosh made his comments as he considers whether to weigh in on the dispute as it continues to wind its way in the federal courts.

The comments also came amid Gov. Larry Hogan’s criticism of the attorney general for not complying with the governor’s request that Frosh support The American Legion and a local parks commission’s petitions that the full 4th U.S. Circuit review the ruling that the cross’s presence violates the constitution.

“The attorney general is our attorney,” Hogan said Thursday. “He represents the executive branch.”

Frosh responded that he is, indeed, the attorney for the governor – but also for state agencies and the people of Maryland. Frosh said he is not the governor’s representative with regard to filing appellate court papers in support of litigants, also called amicus briefs.

“The attorney general’s office weighs in as amicus curiae,” Frosh said. “That is not the governor’s call. He can ask my opinion, but he cannot instruct me as to what my opinion is.”

Frosh said the governor has his own office of legal counsel, which can file papers with federal and state courts independently of the attorney general.

Frosh cited Hogan’s joining, through his legal counsel, an amicus brief before the Supreme Court in opposition to a federal statute that prohibits states from permitting sports betting.

“Why does he weigh in on sports betting when he won’t weigh in on the peace cross” by filing or joining a brief? Frosh said.

In response to such criticism, Hogan on Thursday distinguished the cross and sportsbook cases, saying the latter was an issue of “state’s rights.”

The sportsbook case, which the Supreme Court will hear next month and is expected to decide by the summer, is Gov. Christopher J. Christie et al. v. National Collegiate Athletic Association et al., No. 16-476.

The dispute between the Hogan and Frosh came to a head Wednesday when Frosh, a Democrat, sent a letter to the governor, a Republican, declining his directive to file an amicus brief in support of the parties challenging the ruling by the divided three-judge panel of the 4th Circuit. That panel concluded last month that the World War I memorial on a highway median in Bladensburg just outside of Washington, generally known as the Bladensburg Peace Cross, “excessively entangles the government in religion.”

Frosh said it’s not appropriate to file an amicus brief when the case is in a procedural posture within the appellate court. He added that he would monitor the situation.

Hogan called Frosh’s response a “dereliction” of his duties.

Full review asked

The Maryland-National Capital Park and Planning Commission and The American Legion have asked the full 4th Circuit to review the three-judge panel’s divided decision last month that the monument 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.”

The park commission believes that “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 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 4th circuit panel’s decision drew scorn from Hogan, who swiftly urged Frosh to draft a brief to the court urging reversal.

“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 wrote in a letter to Frosh. “I believe, very strongly, that this cherished community memorial does not violate the Constitution.”

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.

 


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