In a final plea that the Supreme Court hear their appeal, defenders of a 40-foot cross erected as a war memorial in Bladensburg told the justices the monolith represents noble patriotic sacrifice and is not an unconstitutional governmental endorsement of Christianity, as a lower court has ruled.
The American Legion and local park service, in separate papers filed Tuesday with the high court, said the Bladensburg “Peace Cross” is a non-denominational symbol to honor the area’s war dead, much like similar symbols at military cemeteries throughout the United States, including the most famous one in Arlington, Virginia.
The filings were submitted in response to a call by a group advocating a sharp separation of church and state that the Supreme Court let stand the 4th Circuit’s decision that the Peace Cross violates the First Amendment’s prohibition on governmental “establishment,” or endorsement, of a religion.
The justices are scheduled to vote in private conference Sept. 24 on whether to hear the appeal by the Maryland-National Capital Park and Planning Commission and the legion.
The cases are 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 parks panel and American Legion stated in their filings that a Supreme Court’s refusal to review and overturn the 4th Circuit’s decision could spur judicial orders that these longstanding memorials be razed under the mistaken belief that they endorse religion rather than the lives of American heroes.
“The mere inclusion of a cross does not render a monument unconstitutional,” wrote Neal K. Katyal, the park commission’s attorney, in urging the justices to review the 4th Circuit’s decision. “Unless this (Supreme) Court intervenes, the Peace Cross, and numerous memorials like it, will be removed from the nation’s landscape, and their honorees erased from the nation’s memory.”
Katyal, a former acting U.S. solicitor general, is with Hogan Lovells LLP in Washington.
Michael A. Carvin, the American Legion’s attorney, said the 4th Circuit’s decision – if not reviewed and overturned – would make it “difficult to conceive of any cross-shaped monument that will survive” a constitutional challenge. Carvin is with Jones Day in Washington.
The filings followed the American Humanist Association’s defense last month of the lower court’s decision.
“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,” wrote Monica L. Miller, the association’s staff attorney in Washington, in a brief to the justices. “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 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.