Federal judges are considering arguments about whether to order the destruction of a war memorial because its centerpiece is a large cross.
The case could end up at the Supreme Court, probably after President-elect Donald Trump names a replacement for Justice Antonin Scalia.
Bladensburg is a town in Maryland not far from Washington, D.C. In 1925, the mothers of World War I soldiers worked with the American Legion to erect a memorial to the 49 service members from Prince George’s County who served and sacrificed in that conflict. The Bladensburg World War I Veterans Memorial has stood in the town ever since, with a large cross engraved with words like “courage” and “valor,” which one mother said she regarded as the tombstone of her son, who died in France while serving his nation.
The memorial includes other secular features as well, such as a large bronze plaque explaining the memorial’s meaning and including the names of the men it honors. The area where it is located also features other memorials as well.
Although erected on private land, the plot of ground on which the memorial stands was eventually acquired by the state of Maryland in 1960 because it’s adjacent to a road. Since then, it has stood on public property, though the American Legion continues to care for the memorial and perform private ceremonies there.
The American Humanist Association is a militant atheist organization. It sued the state, arguing that the memorial violates the Establishment Clause of the First Amendment to the Constitution because a reasonable observer would regard it as an endorsement of Christianity.
The American Legion intervened in the lawsuit to protect the Bladensburg Memorial, represented by First Liberty Institute—the largest law firm in the United States exclusively dedicated to protecting religious liberty—as well as Supreme Court heavyweight Noel Francisco and Chis DiPompeo from Jones Day—one of the world’s top law firms, which First Liberty Institute recruited to represent the American Legion free of charge.
A Clinton-appointed federal district judge in Maryland ruled in favor of First Liberty Institute and Jones Day, holding that this longstanding war memorial does not violate the Constitution’s prohibition on the government’s establishing a religion.
But a three-judge liberal panel of the U.S. Court of Appeals for the Fourth Circuit seems poised to reverse. Two Obama-appointed judges—James Wynn and Stephanie Thacker—suggested that the parties should agree to move the memorial to private land, or to destroy the arms of the cross to make it stand as a pillar that no longer resembles a Christian symbol.
“You ought to figure out a way not to put us in this situation,” Wynn admonished the parties.
Only Chief Judge Roger Gregory—a Clinton appointee—expressed any sympathy for the memorial’s defenders, asking of a memorial with religious imagery, “Isn’t it also a place where we remember people who died so that others might live?”
DiPompeo argued that this is precisely the right way for the court to view the memorial, because “a symbol that has religious significance can also take on a secular meaning.” Consequently, the memorial “must remain standing.”
If the Fourth Circuit strikes down the Bladensburg Memorial, the results could be disastrous both for veterans and for religious liberty. The five states within the jurisdiction of the Richmond-based appeals court include Virginia, where thousands of gravestones bear the image of the cross. Other markers of sacrifice and remembrance—within the Fourth Circuit and across the globe, such as the beaches of Normandy—are crosses indistinguishable from the one in Bladensburg.
An adverse ruling from the court of appeals would destroy the Bladensburg memorial, and tee up Arlington National Cemetery for destruction as well, along with other memorials and veterans displays.
“Throughout our nation’s history, the military has used the cross shape to honor military service and sacrifice,” First Liberty Deputy Chief Counsel Hiram Sasser said in a statement accompanying oral argument. “We stand to honor the selfless sacrifice of our fallen heroes and ask the court to uphold the constitutionality of this historic memorial.”
Given that the memorial’s defenders appear likely to lose by a 2-1 split decision, this case is a prime candidate for Supreme Court review.
As recently as 2014, Justice Anthony Kennedy wrote a watershed decision in Town of Greece v. Galloway, where the majority held that the “endorsement test” argued by the atheists in that case (as well as this one) was wrong when the High Court first adopted it in 1989. The true test of whether the government is establishing a religion is whether it officially adopts an actual religious belief as public policy (such as passing a law saying that bread and wine in communion is the body and blood of Jesus Christ), or whether the government is coercing a person to participate in a religious activity that violates his conscience.
In short, under this “coercion test,” the government violates the Establishment Clause only if it forces someone to engage in something religious. Applying that test here, a quiet roadside war memorial doesn’t coerce anyone to do anything.
The future of religious liberty became uncertain with the sudden death of Justice Antonin Scalia last February. Now it will turn on whether President Donald Trump selects a true originalist as a successor to the conservative lion.
The American Legion’s Blandensburg case could be the case that sets the future course for this area of religious liberty.
The case is American Human Association v. Maryland-National Capital Park & Planning Commission & The American Legion, No. 15-1297.