Defenders of Maryland WWI memorial not giving up after appeal ruling

The Peace Cross in Bladensburg, Maryland honors 49 soldiers who died in World War I. (Federal court documents)

A panel of federal judges ruled Wednesday that a memorial to soldiers lost in World War I that has stood for more than 90 years represents an unconstitutional endorsement of religion, but defenders of the monument plan to continue their fight.

The Peace Cross stands 40 feet high on a highway median in Bladensburg, Maryland on land maintained by the Maryland-National Capital Park and Planning Commission. It honors 49 soldiers from Prince George’s County who died in the war.

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In 2015, a federal district court judge rejected arguments that the giant cross served as a primarily religious symbol and ruled that the state had a secular reason for maintaining it. On Wednesday, the Fourth Circuit Court of Appeals reversed that opinion.

The case has been remanded to the district court where “the parties are free to explore alternative arrangements that would not offend the Constitution.”

The complaint was filed by the American Humanist Association on behalf of three of its non-Christian members who “are offended by the prominent government display of the cross and wish to have no further contact with it.”

“Government war memorials should respect all veterans, not just those from one religious group,” said Roy Speckhardt, AHA executive director, in a statement. “Religious neutrality is important in a pluralistic society like ours.”

The Freedom from Religion Foundation, which filed an amicus brief in support of the AHA, applauded the ruling.

"The cross was a blatant governmental endorsement of religion," said FFRF Co-President Annie Laurie Gaylor in a statement. "We were confident that the court would make the right decision and are heartened to see we were correct."

The American Legion Department of Maryland, which helped fund the cross, referred all inquiries to its attorneys at First Liberty, a religious freedom organization.

“Today’s decision sets dangerous precedent by completely ignoring history, and it threatens removal and destruction of veterans memorials across America,” Hiram Sasser, deputy chief counsel for First Liberty, said in a statement.

Another attorney for the American Legion claimed it would be “a tremendous dishonor” to the community’s fallen war heroes to remove the monument.

“We are exploring all of our options on behalf of the American Legion, including an appeal directly to the U.S. Supreme Court,” said First Liberty President and CEO Kelly Shackelford.

The MNCPPC is also considering either seeking an en banc hearing with the appellate court or petitioning the Supreme Court to take up the case. It has no plans to make changes to the memorial until the disposition is final.

“Ultimately, our Commissioners will decide how to advance the best interest of the communities we serve in light of the decision and eventual mandate,” general counsel Adrian Gardner said in a statement.

Legal experts were unsurprised by the ruling, given the facts and the outcome of similar cases in the past.

Douglas Laycock, a professor of law and religious studies at the University of Virginia, said the court’s decision “seems clearly right,” describing the cross as a symbol of eternal life for Christians and eternal damnation for everyone else.

“Speaking generally, the cross is the central symbol of Christianity,” he said. “It asserts the truth of one religion, and implicitly but necessarily, the falsehood of all other religions. It's secondary meanings, as in honoring war dead, are entirely derivative of its primary meaning as a symbol of the resurrection.”

Ira Lupu, professor emeritus at the George Washington University Law School and co-author of “Secular Government, Religious People,” compared it to similar findings in the 25-year battle over the Mt. Soledad cross in La Jolla, California. Courts repeatedly ruled in favor of opponents of that cross until the monument and the land beneath it were sold to a private organization last year.

Supporters of the Peace Cross have cited a 2005 case in which the Supreme Court found a display of the Ten Commandments outside the Texas Capitol did not violate the Establishment Clause. However, Lupu pointed to distinctions.

“There is a difference between Ten Commandments displays and crosses that even the late Justice Scalia recognized,” he said.

The court has accepted a secular connection between the history of the nation and the Ten Commandments. Also, in the 2005 case, the monument was surrounded by about 40 other similarly-sized statues and markers related to Texan identity.

The ruling in the current case by Judge Stephanie Thacker, joined by Judge James Wynn, analyzed the intended purpose of the Peace Cross and the actual effect it has. Thacker based her finding on a 1971 Supreme Court case, Lemon v. Kurtzman, which found that a government display must have a secular purpose, not have a principal effect of endorsing religion, and not foster “excessive entanglement” between government and religion.

The cross sits on a traffic island in a heavily-trafficked intersection, but it is part of Veterans Memorial Park. A small sign on a nearby walking path is the only indication that the area is in a memorial park.

There are four other war memorials in the park, but they are between 200 feet and a half mile away. None have religious iconography and none are taller than 10 feet.

Up close, one can see a plaque on the base of the cross that lists the 49 soldiers and quotes President Woodrow Wilson, but Thacker notes that it is badly weathered and difficult for passing drivers to read.

The private citizens who began raising funds to build the cross in 1919 required all donors sign a pledge that explicitly recognized the existence of one god, referred to as “the supreme ruler of the universe.” Local media at the time likened the design of the monument to the cross at Calvary in the Bible.

In 1922, the original organizers ran out of money and the local American Legion post took over responsibility. When it was completed in 1925, Christian prayers were said at the dedication ceremony.

According to the court, memorial services and worship services have occasionally been held at the base of the cross and there are no records indicating any faith besides Christianity was ever represented.

The Maryland-National Capital Park and Planning Commission obtained ownership of the cross and the land around it in 1961. The agency assumed responsibility in part to address the safety issues raised by its position in the middle of a busy traffic median.

It has since spent about $117,000 on maintenance and has set aside another $100,000 for renovations.

Thacker concluded that the intent behind the monument was a secular effort to memorialize the dead, but it was done with a uniquely Christian symbol. As a result, she found that it violated the second and third prongs of the Lemon test.

In a partial dissent, Judge Roger Gregory argued that his colleagues reached “unreasonable conclusions,” and he questioned their focus on the size of the cross.

“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,” he wrote.

Gregory also suggested the 50 years the monument was under state control without any complaints is proof that its secular message was understood.

“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,” he wrote.

Eric Rassbach, deputy general counsel for Becket, a religious liberty organization that filed an amicus brief in the case, said Gregory’s dissent was unexpected and it gives some hope that an en banc hearing with the entire circuit could have a different result. He agreed with Gregory that it is natural for government to make some reference to religion, and such symbols are common around the country.

“If you start saying that you’re going to go around looking for religious icons to smash, the smashing is going to take a very long time,” he said.

Becket is fighting similar cases in other states, arguing that the legal system should not be so hostile to religion and a statue is not necessarily an endorsement of a faith.

“The state of Maryland is not suddenly a theocracy because the Peace Cross is standing there,” Rassbach said.

The majority ruling rejected the argument that declaring this cross unconstitutional could result in crosses being struck down everywhere, including at Arlington Cemetery.

“The crosses there are much smaller than the 40-foot tall monolith at issue here,” the judges wrote. “And, significantly, Arlington National Cemetery displays diverse religious symbols, both as monuments and on individual headstones.”

Lupu agreed that there are significant legal distinctions between a memorial statue maintained by the government and crosses on headstones in a government cemetery.

“Most of the religious symbols at Arlington are on particular headstones,” he said. “That is not the government speaking. That is the family of the deceased.”

According to the Washington Post, the judges urged the parties to find an out-of-court solution.

There are a number of possible resolutions to the Peace Cross situation, although none are likely to please everyone. The easiest answer, according to Lupu, would be for the state to transfer ownership of the land to the American Legion or some other private entity. Its positioning in the middle of a highway the state has to maintain could complicate that, though.

Another option floated by the appellate judges during oral arguments would be removing the arms of the cross, making the monument into something resembling an obelisk. In other cases, the offending statues have sometimes been moved off of public land, but a 40-foot cross may prove difficult to relocate.

If the Peace Cross case reaches the Supreme Court, experts are uncertain how it would play out.

“I think the case points to a source of intense cleavage inside the Supreme Court about what the Establishment Clause requires with respect to religious displays,” Lupu said.

Laycock pointed to a 2010 case, Salazar v. Buono, in which the conservative majority ruled a wooden cross honoring World War I veterans in the Mojave National Preserve could remain.

“The conservative justices, including Kennedy, tend to think that government can put up whatever it wants because no one is coerced to look at it,” he said.

According to the Washington Post, the Fourth Circuit judges seemed “distressed” to have to decide the Peace Cross case without clearer guidance from the Supreme Court on religious displays in public spaces. However, Lupu does not expect further clarity if the high court does hear it.

“If they take it, it’s going to be very fact-specific about the location and the history and the size,” he said, “so it will settle this one but it won’t settle others that are around.”

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