Wednesday, the U.S. Court of Appeals for the Fourth Circuit ordered the removal of a Bladensburg, Maryland, World War I memorial because its 40-foot tall cross shape violates the First Amendment’s Establishment Clause, reversing a lower court ruling that would have preserved the monument and drawing impassioned reactions from litigants and observers throughout the week.
Bladensburg’s “Peace Cross” was erected by the American Legion in 1925 to honor the 49 men from Prince George’s County who fell in the Great War. In 1961, a Maryland state agency took possession of the land on which the monument sits.
Two of the three judges hearing an appeal led by atheist non-profit the American Humanist Association (AHA) agreed that the cross being allowed to stand was a violation of the “separation of church and state,” regardless of the monument’s stated purpose of honoring the war dead. Defendants, including the American Legion, argued that the cross shape and the inclusion of references to “God” in the memorial’s dedication did not amount to a government “endorsement” of Christianity.
“[T]he sectarian elements easily overwhelm the secular ones,” the majority opinion by Barack Obama-appointed Judge Stephanie Thacker reads.
“We also cannot ignore the American Legion’s affiliation with Christianity,” Thacker notes later, concluding, “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.”
A dissent by Bill Clinton-appointed Judge Roger Gregory took issue with the majority’s characterization. “The Establishment Clause was intended to combat the practice of compelling individuals to support and attend government favored churches,” (internal quotes omitted) he argues, adding, with citation to the 1963 Supreme Court decision Abington School Dist. v. Schempp, that it “does not require the government ‘to purge from the public sphere’ any reference to religion.”
Rogers, referencing the dedication plaque on the memorial, concludes:
This Memorial stands in witness to the VALOR, ENDURANCE, COURAGE, and DEVOTION of the forty-nine residents of Prince George’s County, Maryland ‘who lost their lives in the Great War for the liberty of the world.’ 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.
Several amicus (“friend of the court”) briefs, including one in the name of eight bipartisan members of Congress, argued that ordering the cross removed could eventually justify taking away the crosses at sites like Arlington National Cemetery. “The American Humanist Association and its members … advocate what amounts to a per se rule that the display of crosses on government property violates the Establishment Clause,” the brief endorsed by the likes of Sen. Joe Manchin (D-WV) and Rep. Jim Jordan (R-OH) claims.
Judge Thacker saw no such danger, writing:
They raise concerns that siding with Appellants here would jeopardize other memorials across the Nation displaying crosses, laying waste to such memorials nationwide. Any such concern is misplaced. Establishment Clause cases are fact-specific, and our decision is confined to the unique facts at hand.
AHA Legal Director David Niose, also was skeptical. On Thursday, he told Breitbart News:
The Arlington National Cemetery scare is totally without merit. Almost all the crosses in Arlington are on the individual gravestones of soldiers, and there’s nothing wrong with Christian gravestones having Christian crosses. It’s a totally different context. Jewish, Muslim, and other religious beliefs are represented on gravestones as well (including humanists with the Happy Humanist symbol). To suggest that we are out to purge cemeteries of crosses is a gross deception.
In fact, there are several large cross-shaped monuments at Arlington National Cemetery including the Canadian Cross of Sacrifice, a 24-foot cross dedicated to American citizens who were killed in Canadian service in World War I, and the 13-foot Argonne Cross.
“Today’s decision sets dangerous precedent by completely ignoring history, and it threatens removal and destruction of veterans’ memorials across America,” Hiram Sasser, general counsel of First Liberty Institute, a religious liberty public interest law firm representing the American Legion in the case, said in a press release.
The humanist advocates celebrating Wednesday’s win were displeased with how the case has been portrayed. “The current news coverage is painting The AHA as anti-Christian and anti-veteran. The truth is we aren’t anti-veteran or even anti-religious,” AHA Spokeswoman Amy Couch told news outlets Thursday.
Roy Speckhardt, AHA’s executive director, added, “Instead of a Christian-only memorial, we want a universal monument that reflects the patriotic contributions of all our fallen heroes and heroines” and, in a separate press release, “government war memorials should respect all veterans, not just those from one religious group.”
When Breitbart News pointed out that the Blandensburg cross was erected to memorialize 49 specific Prince George’s County soldiers, the AHA changed tack. The demand for a universal pluralistic tribute to veterans and respecting non-Christian soldiers became secondary to the removal of crosses from public property.
Asked if a monument to just these soldiers, all men – not “heroines” – and, given the demographics of Maryland in 1918, overwhelmingly Christian men – was, in and of itself, inappropriate, Niose, the AHA legal director, replied, “[O]f course not. We only object to the religious nature of the monument.”
The AHA was unable to cite a single humanist or non-Christian among the dead.
“We do not know the actual religious beliefs of the 49 soldiers in question,” Noise told Breitbart News, “but their religious beliefs are irrelevant to the issue of whether the government should maintain a 40-foot cross on public property to honor them. It would be very easy to construct a war memorial that honors the 49 soldiers without utilizing a Christian cross to do so.”
First Liberty Institute may petition to the Supreme Court, which, while usually reluctant to take up Establishment Clause cases, has done so several times in recent years. As of Friday, First Liberty and international law firm Jones Day, also representing the American Legion, had yet to announce their decision on which option to pursue. A petition for an “en banc” hearing, where all the judges of the Fourth Circuit would rehear the case, is another possibility.
“The American Legion’s commitment to preserving the Bladensburg Memorial has been unwavering,” Kelly Shackelford, president of the firm, stated on the First Liberty Institute’s website. “We are exploring all of our options on behalf of the American Legion, including an appeal directly to the U.S. Supreme Court.”
The case is American Humanist Ass’n v. Maryland-Nat’l Capital Park & Planning Comm’n, No. 15-2597.
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