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Humanist group urges justices to let ‘Bladensburg Cross’ ruling stand

4th Circuit has said war memorial violates church-state wall

The Bladensburg Cross. (Flickr / David / “Peace Cross” / CC BY 2.0 / resized)

The Bladensburg Cross. (Flickr / David / “Peace Cross” / CC BY 2.0 / resized)

A group that advocates for a sharp separation of church and state is urging the U.S. Supreme Court to let stand a lower court’s ruling that a 40-foot-cross erected as a war memorial on state-owned land in Bladensburg violates the constitutional prohibition on governmental endorsement of religion.

In papers filed with the justices Friday, the American Humanist Association stated the 4th U.S. Circuit Court of Appeals correctly held the “Bladensburg Cross,” though intended to honor war dead, cannot be separated from its significance a clear symbol of Christianity and thus runs afoul of the First Amendment’s prohibition on governmental “establishment” of religion.

“The Fourth Circuit understood that the proper question is not whether the Christian cross at issue can reasonably be perceived as a war memorial, but rather whether it can reasonably be perceived as a war memorial that commemorates Christians to the exclusion of all others,” the association wrote. “Surely, a Christian cross war memorial does not commemorate, and necessarily excludes, the 3,500 Jewish soldiers who gave their lives for the United States in World War I. It also co-opts a sacred symbol for government military purposes, offending many Christians.”

The association’s counsel of record before the high court is Monica L. Miller, an attorney with the group in Washington.

The association submitted its brief in response to filings last month by the Maryland-National Capital Park and Planning Commission and The American Legion urging the Supreme Court to review and overturn the 4th Circuit’s decision.

The commission called that ruling “grievously incorrect,” saying the 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 attack since World War I.

“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 for high-court review. “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 Supreme Court has not said when it will decide whether to hear the commission’s and legion’s appeals.

The cases, expected to be consolidated by the justices, 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 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 Judge Deborah K. Chasanow ruled that the cross at the corner of Route 1 and Annapolis Road does not violate the Establishment Clause.

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.

“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.

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