A veteran U.S. Supreme Court attorney who served as President Barack Obama’s chief advocate before the justices will spearhead a Maryland park panel’s request that the court reviews and overturns a ruling that a 40-foot-tall cross erected as a war memorial on state-owned land in Bladensburg violates the constitutional separation of church and state.
Former acting U.S. Solicitor General Neal K. Katyal will press the Maryland-National Capital Park and Planning Commission’s high-court appeal based on the argument that the edifice symbolizes not a religion – as the 4th U.S. Circuit Court of Appeals held – but noble patriotic sacrifice.
In papers filed last week with the high court, Katyal asked for a 30-day delay – until June 29 – to file the commission’s request for review.
The partner at Hogan Lovells LLP in Washington said he needs the time to familiarize himself with the lower-court proceedings while honoring prior commitments to argue a separate Supreme Court case, submit an unrelated brief to the justices and file papers in cases before the 11th U.S. Circuit Court of Appeals and the U.S. District Court in Philadelphia.
Katyal’s request for a 30-day postponement of what would be a May 30 deadline awaits Chief Justice John G. Roberts Jr.’s decision.
Though labeled an extension request, Katyal’s filing also contained arguments in favor of Supreme Court review and reversal of what he called the 4th Circuit’s “absolutist” view of the cross as a Christian symbol.
The 4th Circuit’s decision runs counter to Supreme Court rulings holding that religious displays in a secular setting should not be divorced from their non-sectarian history, purpose and context, such as honoring war dead, he wrote.
“The decision below will also have profound and negative consequences,” wrote Katyal, who has argued more than 30 cases before the justices. “Among other things, the 4th Circuit’s reasoning would compel the removal or destruction of hundreds of monuments across the country, including similar memorials to the fallen in nearby Arlington National Cemetery. And it will call into question common displays and practices – such as military medals of valor – that similarly employ crosses for commemorative or historical purposes.”
In its 2-1 decision, the 4th Circuit panel stated in October that the cross “has the primary effect of endorsing religion and excessively entangles the government in religion” in violation of the First Amendment.
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’s request for a hearing before the full 4th Circuit was rejected by an 8-6 vote March 1, prompting the coming appeal to the Supreme Court.