Maryland Attorney General Brian E. Frosh may have waited too long to challenge in the U.S. Supreme Court a federal appeals court 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, his re-election foe said Friday.
Frosh should have mounted the challenge no later than shortly after a divided three-judge panel of the 4th U.S. Circuit Court of Appeals held in October that the monument promotes Christianity in violation of the Constitution’s First Amendment prohibition on governmental “establishment” of religion, said Craig Wolf, a Republican.
Had Frosh, a Democrat, filed in the 4th Circuit perhaps the full appellate court would have reviewed the panel decision and ruled the cross to be not a symbol of religion but of noble patriotic sacrifice, Wolf said. Instead, the full 4th Circuit chose not to review the panel’s ruling, leaving the supporters of the memorial – known as the “Bladensburg Cross” or “Peace Cross” – with no choice but to seek Supreme Court review, Wolf added.
On Thursday, Frosh submitted a “friend of the court brief” to the justices urging them to review and overturn the panel’s decision. Frosh 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 – the two parties directly appealing the 4th Circuit’s ruling.
Frosh “could have weighed in so much earlier,” said Wolf, a former federal prosecutor. “Had he gotten involved earlier, we may have had a different decision in the 4th Circuit and we wouldn’t have to try to seek certiorari now. The Supreme Court takes very few cases, so his failure to act earlier makes the road tougher now.”
Wolf said the 4th Circuit’s ruling was clearly wrong, as the Bladensburg cross was never intended to signify or endorse a religion but to symbolize and memorialize wartime sacrifice.
“This is not even close,” Wolf said. “This is a memorial. It is not an endorsement.”
Frosh countered Friday that he followed appropriate appellate procedure in waiting until after the parties to the case – the legion and commission – had petitioned for Supreme Court review.
“I have a hard time understanding why his accusation is news,” Frosh said of Wolf.
“We filed it (the brief) at the time it would make the most difference: when there was a petition for certiorari,” Frosh added. “I’m complimented that he thinks our brief would have made a difference. I think it’s a very good brief.”
Wolf is not the first Republican to criticize Frosh’s actions in the case. Gov. Larry Hogan in October asked Frosh to file an amicus brief in support of parties challenging the 4th Circuit ruling. Frosh responded by saying it was not the appropriate time but he would monitor the situation, a decision Hogan called a “dereliction” of his duties.
Frosh’s filing Thursday on behalf of the state of Maryland was co-signed by Assistant Maryland Attorney General John R. Grimm, the state’s counsel of record in the case before the high court.
“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 justices. “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.”
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 Circuit 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 that the cross “has the primary effect of endorsing religion and excessively entangles the government in religion” in violation of the First Amendment.