The American Legion, et al. v. American Humanist Association, et al., No. 17-1717; Maryland-National Capital Park and Planning Commission v. American Humanist Association, et al., No. 18-18.
Responses to the petitions for certiorari are expected to be submitted during the first week of August.
What is in issue? A forty foot tall cross memorializing World War I veterans stands at the intersection of U.S. Route 1 and Maryland Route 50 in Bladensburg, Maryland. Called the “Bladensburg Cross,” the monument to fallen soldiers was completed in 1925, has been maintained by the Maryland Historic Trust, and was added to the National Register of Historic Places in 2015.
Secular humanists lodged Establishment Clause objections to the monument in 2012. The United States Court of Appeals for the Fourth Circuit agreed with their position that the monument’s presence is an unconstitutional endorsement of religion.
The Fourth Circuit determined that the 90 year presence of the “Peace Cross” could not survive the test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971) because the presence of the Latin cross, symbolizing Christianity, has the primary effect of endorsing Christianity to the exclusion of all other religions.
The request for Supreme Court review. Defendant the Maryland-National Capital Parks and Planning Commission and intervenors the American Legion and affiliated organizations seek United States Supreme Court review, urging rejection of the Fourth Circuit’s view, noting marked disagreement among the circuit courts of appeals on the constitutionality of public displays of religious symbols, and inviting the Court to revisit and to realign an unwieldy Establishment Clause jurisprudence.
The state agency’s petition for certiorari. The Parks and Planning Commission argues that the cross has a predominantly secular purpose and conveys a predominantly secular message, rendering Establishment Clause examination unnecessary, particularly where the Supreme Court has held that the constitution does not require eradication of all public symbols of religion.
The state petitioner notes that some federal circuit courts of appeal have essentially prohibited, as presumptively unconstitutional, the use of memorial crosses, a position which threatens the continued vitality of war memorials throughout the country. Other circuits find the use of memorial crosses unobjectionable as nonsectarian historic commemoratives.
The Parks and Planning Commission argues that the nearly century old cross serves as a secular symbol of commemoration and as such does not violate existing Establishment Clause principles, which permit the use of religious symbols to convey nonsectarian messages. The purpose and setting of the cross does not suggest the sacred.
The veterans’ organizations petition for certiorari. Petitioners the American Legion and affiliates ask the Court to consider whether the Bladensburg memorial is unconstitutional because it is shaped like a cross, whether precedental tests should govern passive public displays of religious symbolism and, if Lemon applies, whether the state’s maintenance of the monument is an excessive entanglement with religion.
The Fourth Circuit’s conclusion, the veterans’ organizations suggest, offends the “benevolent neutrality” which the Court has found appropriate in Establishment Clause review. Walz v. Tax Comm’n, 397 U.S. 664, 669 (1970). The wholesale and sweeping condemnation of all religious symbols without regard to secular purposes evinces hostility to religion and threatens memorials such as Arlington National Cemetery.
Petitioners stress that it has been observed that Establishment Clause jurisprudence is currently “a shambles,” that not only is the appropriate test for review of pf passive displays in disarray, but also the courts are in disagreement about construction of the “reasonable observer” test used in evaluating the impact of religious iconography or language. Additionally, there is disagreement concerning whether any state maintenance of memorials incorporating religious symbols offends the Establishment Clause prohibition of state entanglement in religion.
The veterans’ organizations argue that the presence of the Bladensburg memorial cross is constitutional no matter what test is applied. The veterans submit that the Court has found the Lemon test inapt when applied to passive monuments. The Court has found, however, that historic meaning may permit religious acknowledgement without violating the Establishment Clause. Thus the state of Texas may display the Ten Commandments on the state capitol grounds amidst other historic messages without offending the Establishment Clause. Van Orden v. Perry, 545 U.S. 677 (2005).
Even if Lemon were applicable, the American Legion groups argue, the Bladensburg Cross would pass its three-prong test. The cross has the secular purpose of remembering the war dead; the cross by itself does not advance or inhibit religion; the cross does not foster government entanglement with religion even if some public funds are used for maintenance. Nothing in the monument’s presence suggests that any religion is endorsed or that anyone not believing is not part of the community or that any beliefs at all are relevant to community participation. The constitutional prohibition of endorsement does not mean that all must be spared discomfort if they observe symbols they do not accept. The question is how a reasonable and informed observer would perceive a display.
The veterans submit that minor state expenditures — $117,000 over six decades — to maintain the memorial and its grounds cannot be seen as the “comprehensive, discriminatory, and continuing” state involvement necessary to constitute entanglement. Mueller v. Allen, 463 U.S. 388, 403 (1983).
The presence of the monument is acceptable within more recent Establishment Clause decisions, the veterans’ organizations advocate, as the Court has looked to historic traditions for guidance in determining whether a practice is constitutionally out of bounds. Thus the tradition of opening legislative sessions with prayers that do not proselytize, denigrate or carry an improper government purpose is constitutionally innocuous. Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).
The veterans’ organizations urge the Court to validate the historic use of the cross to commemorate the fallen and ask that the Court find such measures presumptively constitution. The veterans caution against the improper interpretation of the Lemon” effect test, for so doing would erroneously attribute religious meaning where a secular historical purpose predominates.