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Md. asks justices to hear ‘Peace Cross’ appeal, avoid church-state question

The state has been investigating the drug companies since 2016, according to Attorney General Brian E. Frosh. (Maximilian Franz )

Attorney General Brian E. Frosh. (Maximilian Franz )

The state of Maryland is urging the U.S. Supreme Court to review and overturn a lower court’s decision 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.

In papers filed with the justices Thursday, the state is not pressing the justices to reach the constitutional question. Rather, Maryland contends the Constitution should not apply because the memorial cross essentially belongs to a private entity, The American Legion, though owned by a governmental agency, the Maryland-National Capital Park and Planning Commission.

“Although today a Maryland governmental entity owns and maintains the monument so as to preserve public safety, the original owner, The American Legion, conditioned its transfer of the property by reserving the right to use the site to honor those who died while fighting for our country,” Attorney General Brian E. Frosh wrote to the high court. “The monument is used only by private parties, and only for secular purposes, and any message the monument conveys is, and always has been, their message and not the commission’s.”

Frosh submitted the state’s brief as the justices consider whether to hear the legion’s and commission’s respective appeals of the 4th U.S. Circuit Court of Appeals decision that the monument – referred to as the “Bladensburg Cross” or “Peace Cross” – promotes Christianity in violation of the Constitution’s First Amendment prohibition on governmental “establishment” of religion.

The state’s filing comes days after Senate President Thomas V. Mike Miller Jr. and seven colleagues also asked the justices to review and overturn the 4th Circuit decision, which the senators called “utterly unrecognizable.”

In his brief, Frosh pressed the Supreme Court to review that decision and “clarify that lower courts must examine factors such as a private party’s property interest in a monument before finding a First Amendment violation.”

Lower courts “should weigh any private interests in a site when evaluating whether governmental ownership creates an Establishment Clause violation,” Frosh added in the brief co-signed by Assistant Attorney General John R. Grimm, the state’s counsel of record before the high court.

The Supreme Court has not said when it will decide whether to hear the two companion cases challenging the 4th Circuit’s ruling. The appeals are docketed at the high court as The American Legion v. American Humanist Association, No. 17-1717, and Maryland-National Capital Park and Planning Commission v. American Humanist Association, No. 18-18.

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 monument has a plaque at its base that 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 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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