A 40-foot tall cross erected as a war memorial on state-owned land in Bladensburg violates the constitutional separation of church and state, though it is used to symbolize noble patriotic sacrifice, an atheistic organization stated Monday in papers filed in a federal appeals court.
“Using a Christian cross as a war memorial does not make the cross secular,” attorneys for the American Humanist Association wrote. “It makes the war memorial religious.”
The Washington-based group made its argument in asking the full 4th U.S. Circuit Court of Appeals to let stand 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 local park service and The American Legion have asked for the full court’s review, saying the cross is commemorative, not religious.
In its controversial decision, the 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 Maryland-National Capital Park and Planning 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.”
But the association, in its filing, stated the cross’s sectarian symbolism cannot be minimalized.
“Unlike the Ten Commandments, the cross does not have a dual secular meaning that can be divorced from its religious significance,” the association wrote. While the commandments have “an undeniable historical meaning” tied to lawmaking, “a Christian cross commemorates only Christians,” the association added.
The association is represented by its staff attorneys Monica L. Miller and David A. Niose, as well as Baltimore solo practitioner Daniel P. Doty.
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 cross has been standing at the corner of Route 1 and Annapolis Road for 90 years and is surrounded by secular symbols, including arches and a plaque, also honoring and naming the 49 Prince George’s County residents killed in the war. The memorial is adorned with the 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 4th Circuit’s panel 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 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 panel’s majority, however, agreed only that the cross has the “legitimate secular purpose” of serving as a war memorial. It added the cross cannot be separated from its religious symbolism, 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.