A military veterans’ group Monday urged the U.S. Supreme Court to overturn a decision that a 40-foot cross erected as a war memorial in Bladensburg violates the constitutional separation of church and state.
In papers filed with the justices, The American Legion said the 4th U.S. Circuit Court of Appeals read the Constitution too strictly when it held that the Bladensburg “Peace Cross” endorses Christianity in violation of the First Amendment’s prohibition on governmental “establishment” of religion.
The Constitution prohibits not governmental endorsement of religion with symbols but rather governmental attempts to coerce people into accepting a faith, wrote Michael A. Carvin, the legion’s chief counsel before the justices.
“The Peace Cross does not violate the Establishment Clause because it does not coerce religious belief, practice, or financial support – whether through compelled profession or observance, excessive proselytization, or other historically grounded means,” wrote Carvin, of Jones Day in Washington.
“As an initial matter, passive displays like the Peace Cross will almost never be coercive because, even more obviously than with legislative prayer and other government speech, a government’s use of religious imagery in a passive display does not compel citizens to support or participate in any religion or its exercise,” Carvin added. “Thus, consistent with the original meaning of the Establishment Clause, this court should clarify that passive displays with religious imagery – like the Peace Cross – will not constitute an establishment of religion except in extraordinary circumstances. Here, far from extraordinary circumstances, a memorial honoring war dead is precisely where one would expect to encounter religious imagery in a government display.”
In addition to the legion, the Maryland-National Capital Park and Planning Commission has appealed the 4th Circuit’s decision to the justices.
The Supreme Court last month agreed to hear the legion’s and commission’s appeals early next year. The justices are expected to issue their decision by the summer in the consolidated cases, The American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association, Nos. 17-1717 and 18-18.
The American Humanist Association, which advocates a sharp separation of church and state, is urging the Supreme Court to let stand the 4th U.S. Circuit Court of Appeals’ decision that the Peace Cross violates the First Amendment.
AHA’s senior counsel and lead attorney in the case, Monica Miller, said in a statement last month that “the 4th Circuit’s decision correctly recognized that the government’s prominent Christian cross memorial unconstitutionally favors Christian veterans to the exclusion of all others.”
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 2017 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.