The U.S. Supreme Court must overturn a lower court’s “grievously incorrect” ruling that a 40-foot-cross erected more than 90 years ago as a war memorial on state-owned land in Bladensburg violates the constitutional separation of church and state, the local park commission stated in papers filed last week with the justices.
The Bladensburg Cross is not intended to promote Christianity but to symbolize the noble patriotic sacrifice of Prince George’s County residents, and now also others, killed in battle or terrorist attacks since World War I, the Maryland-National Capital Park and Planning Commission added in its filing.
The commission’s comments came in a petition urging the justices to review and overturn a published 4th U.S. Circuit Court of Appeals’ decision that the cross cannot be separated from its religious significance.
Specifically, the 4th Circuit held that the display of the cross — virtually synonymous with Christianity — violates the Constitution’s First Amendment prohibition on governmental “establishment” of religion, a decision the commission said runs counter to legal precedent.
“This (Supreme) Court has time and again made clear that the Establishment Clause does not require eradication of all religious symbols in the public realm,” the commission stated in its petition. “Rather this court has recognized that passive displays – particularly displays that have stood without challenge for decades – may constitutionally employ religious symbols in order to convey a predominantly nonreligious message. It is difficult to conceive of a monument whose content, context, and history more clearly convey a nonsectarian message of remembrance and respect than this one.”
The commission’s counsel of record before the justices is Neal K. Katyal, a former acting U.S. solicitor general and current partner at Hogan Lovells US LLP in Washington.
The American Humanist Association, an atheistic group that endorses a sharp separation of church and state and has successfully challenged the monument’s constitutionality so far, has until July 27 to reply to the review request.
“Government war memorials should respect all veterans, not just those from one religious group,” Roy Speckhardt, AHA’s executive director, said in a statement following the 4th Circuit’s ruling. “Religious neutrality is important in a pluralistic society like ours.”
The Supreme Court has not said when it will decide whether to hear the commission’s appeal, which followed a similar request filed June 25 by The American Legion, which helped build the cross.
The cases are docketed at the Supreme Court as Maryland-National Capital Park and Planning Commission v. American Humanist Association, No. 18-18, and The American Legion v. American Humanist Association, No. 17-1717.
The path to the justices was cleared in March when the full 4th U.S. Circuit Court of Appeals declined by an 8-6 vote to review the decision of a divided three-judge panel of the court that the monument is unconstitutional.
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 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.”
The American Humanist Association 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, dedicated in 1925, 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 now 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 the U.S. District Court in 2015, as Senior Judge Deborah K. Chasanow ruled that the cross at the corner of Route 1 and Annapolis Road does not violate the establishment clause of the U.S. Constitution.
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 park commission 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.
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 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.