ANNAPOLIS – If the case gets appealed to the Supreme Court as expected, Maryland Attorney General Brian E. Frosh will urge the justices to affirm the constitutionality of a 40-foot-tall cross erected as a war memorial on state-owned land in Bladensburg.
Frosh said through a spokesperson Thursday he plans to file a brief in support of The American Legion’s coming appeal of the 4th U.S. Circuit Court of Appeals’ 2-1 decision in October that the cross violates the Constitution’s separation of church and state because it “has the primary effect of endorsing religion and excessively entangles the government in religion.”
“The Latin cross is the core symbol of Christianity,” the majority added. “And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds.”
Frosh’s office declined to give details of the attorney general’s argument prior to the filing of a brief.
The full 4th Circuit set the stage for a Supreme Court appeal March 1 when it rejected a request by the legion and local park commission for review of the three-judge panel’s decision. The American Legion stated within hours of the rejection that it would seek review by the high court.
Frosh’s intention to submit a supportive brief in the Supreme Court was first reported by The Washington Post.
Frosh’s refusal to file papers in support of the legion when the case was before the 4th Circuit drew criticism from Gov. Larry Hogan, who called the attorney general’s inaction a dereliction of duty.
In letters to Hogan, Frosh responded he was not then nor is he is now under any obligation to obey the governor’s request to file such a brief.
Hogan noted the importance of memorializing Marylanders who “have valiantly laid down their lives for their country.”
The 4th Circuit’s ruling “threatens centuries of our state’s endeavors to recognize, celebrate, and memorialize this history and our citizens’ sacrifices,” Hogan wrote in a letter to Frosh in October. “The U.S. Constitution does not require that these efforts be undone or monuments to our soldiers be desecrated.”
The American Humanist Association, an atheistic organization that endorses a sharp separation between church and state, mounted the legal challenge to the cross’s constitutionality. The American Legion and the Maryland-National Capital Park and Planning Commission, which owns and maintains the cross, have sought to defend its constitutionality as a memorial symbol.
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.
The American Legion and park commission repelled the constitutional challenge in U.S. District Court in 2015, as Judge Deborah K. Chasanow ruled 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 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 panel 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 M-NCPPC 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. “
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 three-judge panel 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.
The American Legion and park commission sought a hearing by the full 4th Circuit.
The eight judges who voted against the hearing were Diana G. Motz, Allyson K. Duncan, Barbara M. Keenan, Wynn, Albert Diaz, Henry F. Floyd, Thacker and Pamela A. Harris. Those voting for the hearing were Gregory and Judges J. Harvie Wilkinson III, Paul V. Niemeyer, William B. Traxler Jr., Robert B. King and G. Steven Agee.