Constitutional – First Amendment – Establishment Clause – War Memorial – 40-Foot Cross

American Humanist Association v. Maryland-National Capital Park & Planning Commission (Lawyers Weekly No. 001-188-17, 48 pp.) (Stephanie Thacker, J.) (Roger Gregory, C.J., concurring in part & dissenting in part) No. 15-2597; Oct. 18, 2017; U.S.D.C. at Greenbelt, Md. 4th Cir.

Holding: A 40-foot tall Latin cross that is maintained with state funds at a busy intersection has a secular purpose as a war memorial; however, it also advances Christianity, and the state’s maintenance of the display fosters an excessive entanglement between government and religion. Therefore, the state’s maintenance of the cross violates the Establishment Clause of the First Amendment.

We reverse the district court’s ruling to the contrary. Remanded.

The cross in question was erected in 1925 by the American Legion as a memorial to the 49 soldiers from Prince George’s County, Maryland, who died in World War I. In 1961, the county acquired the monument and the land on which it stands – a traffic island at a busy intersection.

Three non-Christian county residents and the American Humanist Association (AHA), a nonprofit organization that advocates to uphold the founding principle of separation of church and state, brought suit claiming the monument violates the Establishment Clause of the First Amendment.

The individual plaintiffs have faced multiple instances of unwelcome contact with the cross. They have standing because, in religious display cases, unwelcome direct contact with a religious display that appears to be endorsed by the state is a sufficient injury to satisfy the standing inquiry.

The AHA has members in Prince George’s County who have faced unwelcome contact with the cross. These interests are germane to the AHA’s purpose of maintaining the separation of church and state, and the claim and relief sought do not require individual participation. Thus, the AHA also has standing.

The Establishment Clause provides, “Congress shall make no law respecting an establishment of religion . . . .”

According to Lemon v. Kurtzman, 403 U.S. 602 (1971), to comply with the Establishment Clause, a challenged government display must (1) have a secular purpose; (2) not have a principal or primary effect that advances, inhibits, or endorses religion; and (3) not foster an excessive entanglement between government and religion.

The defendant-commission has articulated legitimate secular purposes for displaying and maintaining the cross: honoring World War I soldiers and maintaining safety near a busy highway intersection.

However, as to the second Lemon prong, the Latin cross is the preeminent symbol of Christianity and not a symbol of any other religion.

A reasonable observer would know that the cross in question has a plaque at its base containing the names of the 49 soldiers being honored, the words “valor,” “endurance,” “courage,” and “devotion” inscribed on its base, and an American flag flying in its vicinity.

Such an observer would also understand the cross’s location in Veterans Memorial Park. However, the other monuments in the park are between 200 feet and half a mile away from the cross, which dwarfs the next largest, 10-foot-tall monument.

A reasonable observer would also know that the original fundraisers for the cross pledged devotion to faith in God and that a Latin cross generally represents Christianity.

These facts collectively weigh in favor of concluding that the cross endorses Christianity, not only above all other faiths, but also to their exclusion.

Plaintiffs have also shown excessive entanglement for two reasons. First, the commission has spent at least $117,000 to maintain the cross and has set aside an additional $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. 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. Therefore, the third prong of Lemon is also violated.

Reversed and remanded.

Concurrence & Dissent

(Gregory, C.J.) I agree that plaintiffs have standing; however, the display and maintenance of the memorial does not violate the Establishment Clause.

Although a reasonable observer would properly notice the memorial’s large size, she would also take into account its plaque, the American Legion symbol upon it, the four-word inscription, its 90-year history as a war memorial, and its presence within a vast state park dedicated to veterans of other wars.

The majority makes much of the memorial’s isolation from the other monuments in the park, as it sits in the median of a now busy highway, making it difficult to access. But a reasonable observer would note that the memorial was placed there as part of the concurrent creation of the National Defense Highway to commemorate the soldiers of World War I, not as a means of endorsing religion.

I conclude that 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. 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 nonreligion.

With regard to Lemon’s third prong, the commission is merely maintaining a monument within a state park and a median in between intersecting highways that must be well lit for public safety reasons. Further, the commission’s use of $122,000 over the course of more than 50 years for lighting and upkeep is not a promotion of any religious doctrine, as the memorial is a historical monument honoring veterans.

I would affirm.