Maryland Attorney General Brian E. Frosh and the Trump administration have found something they agree on: The U.S. Supreme Court should 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 last month, Frosh and acting U.S. Solicitor General Jeffrey B. Wall 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.
But Frosh and President Donald Trump’s chief advocate before the Supreme Court disagree on why the controversial cross is constitutionally consonant.
Frosh, in his filing on behalf of Maryland, stated that the memorial cross does not violate the First Amendment because the symbol was placed not by the state but by a private group, The American Legion.
Wall, in his filing on behalf of the United States, conceded the cross is state-sponsored but added it represents a “passive,” constitutionally permissible display of religion akin to a prayer before a legislative session and is not an attempt to compel divine belief.
The Supreme Court will hear arguments Feb. 27 on the constitutionality of the cross 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 justices are expected to render their decision by this summer.
Frosh, in Maryland’s friend of the court brief, acknowledged that a state agency – the Maryland-National Capital Park and Planning Commission – has legal title to the cross to ensure its upkeep but that the legion remains the symbol’s “de facto” owner, thus preserving the separation of church and state.
“The (Supreme) Court should clarify that this context matters, and that when a monument looks like private property and is used like private property, the Constitution does not prohibit a state from becoming the property’s custodian solely to ensure the monument remains safe,” Frosh wrote in the brief joined by Assistant Maryland Attorney General John R. Grimm, the state’s counsel of record before the justices.
“It is an essential tenet of the court’s Establishment Clause jurisprudence that every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion,” Frosh added. “In context, the Peace Cross very much remains The American Legion’s monument, and the commission’s involvement in supporting its maintenance does not violate the First Amendment. The court should confirm that a private entity’s substantial interests in a property are a relevant factor that weighs against finding an Establishment Clause violation.”
Wall, in the federal government’s friend-of-the-court brief, said the Peace Cross’ “context, history and physical setting … underscore its secular message: commemoration and respect for the fallen.”
Added Wall: “History shows that the (Constitution’s) framers understood the Establishment Clause as prohibiting the coercion of religious belief or adherence, but not the acknowledgment of religion in public life. Passive displays generally fall on the permissible side of that line, because they typically do not compel religious belief or its exercise; or represent an effort to proselytize or denigrate any particular faith.”
The American Humanist Association, which advocates a sharp separation of church and state, initiated the constitutional challenge. It is urging the Supreme Court to let stand the 4th Circuit’s decision that the Peace Cross violates the First Amendment.
AHA’s senior counsel and lead attorney in the case, Monica Miller, said in a recent statement 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.”
Frosh, an outspoken critic of Trump, has sued the president in his official and personal capacities for allegedly violating the Constitution’s prohibition on presidents receiving compensation or other benefits, or “emoluments” from foreign or state governments. Frosh and District of Columbia Attorney General Karl A. Racine say Trump has unconstitutionally profited by encouraging foreign and state officials to frequent his Washington, D.C., real estate holding, the Trump International Hotel.
Trump denies the allegation.