WWI Memorial Cross Display Ruled Unconstitutional

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By Bernie Pazanowski

A Latin cross located on public property at a busy intersection, erected to honor local soldiers who died in World War I, violates the First Amendment’s establishment clause, the U.S. Court of Appeals for the Fourth Circuit ruled Oct. 18 ( Am. Humanist Ass’n v. Md.-Nat’l Capital Park & Planning Comm’n , 4th Cir., No. 15-2597, 10/18/17 ).

The 40-foot tall cross has the primary effect of endorsing religion and excessively entangles the government in religion, the court said in an opinion by Judge Stephanie D. Thacker.

Becket Fund Deputy General Counsel Eric Rassbach told Bloomberg Law that the court’s discussion of the “reasonable observer” test is extreme and “declares open season on monuments across the country that include Latin crosses.” The Becket Fund filed an amicus brief in the case supporting the state.

There are a number of “cross-in-a-park” cases pending in other courts that may be swayed by this opinion, Rassbach said. But if any of them come out the other way, the U.S. Supreme Court may be forced to weigh in on the issue, he said.

The opinion is important because it has a good discussion concerning the meaning of the cross, the length of time it has been in place, and the importance of the government’s maintenance of the cross, Patrick Charles Elliott, Freedom From Religion Foundation, Madison, Wis., told Bloomberg Law.

The opinion is also consistent with how other courts have treated similar cases, he said. The FFRF filed an amicus brief in the case supporting the plaintiffs.

Honoring the Fallen

The project to fund and erect the cross was started in 1918 by a private organization, which required donors to recognize the existence of one god. The American Legion took over the project in 1922, and it was completed in 1925.

Over the years, prayer services and even Sunday worship services have been held at the cross. But it’s also used for veteran-focused activities.

In 1961, Maryland obtained title to the cross and its land, because it had safety concerns. The state now maintains and repairs the cross.

Location, Location, Location

The cross sits on a one-third acre traffic island in a busy intersection. The American Legion symbol is affixed near the top of the cross and an American flag flies nearby. Its base is inscribed with the words “valor,” “endurance,” “courage,” and “devotion.” There is a 2-foot by 9-foot plaque that lists the names of the 49 soldiers from the community who died during the war. The plaque, however, is illegible to passing motorists.

The intersection is part of memorial park honoring local veterans of several wars. The surrounding monuments, however, are located from 200 feet to a half-mile away.

Plaintiffs, non-Christian residents of the county in which the cross is located and a nonprofit association that advocates for the separation of church and state, argued that the cross amounts to a governmental affiliation with Christianity. The district court ruled that the cross has a secular purpose, neither advances nor inhibits religion, and doesn’t have a primary effect of endorsing religion.

Core Symbol of Christianity

The Fourth Circuit reversed, applying Supreme Court cases Lemon v. Kurtzman and Van Orden v. Perry.

Maintaining and preserving a war memorial is a legitimate secular purpose, the appeals court said. Even though the Latin Cross is a preeminent symbol of Christianity, the history of this cross is “semisecular,” it said.

The display has gone unchallenged for over 90 years, has nonreligious elements and sits among other, scattered, war memorials, the court noted.

But the nonreligious elements are either obscured or dwarfed by the size of the cross, which is 30-feet taller than the other memorials, it said. It also rejected the argument that the longer a violation goes unchallenged, the less violative it becomes.

The “historical meaning and physical setting of the Cross overshadow its secular setting,” and the reasonable observer “would fairly understand the Cross to have the primary effect of endorsing religion,” the court said.

Excessive Entanglement

There is also excessive entanglement in this case, the court said. The state owns the cross and has already spent $117,000 to maintain it and has another $100,000 set aside for restoration, it said.

Displaying this cross, with its size, history, and context, is excessive entanglement because the state is displaying the hallmark symbol of Christianity in a way that places Christianity above other faiths, the court said.

Judge James A. Wynn Jr. joined the opinion.

Chief Judge Roger L. Gregory dissented, arguing that the memorial honors the lives lost by local residents in World War I and that “a monument so conceived and dedicated and that bears such witness violates the letter or spirit of the Constitution these heroes died to defend.”

Monica Lynn Miller, Washington, represented the American Humanist Association. William Charles Dickerson, Riverdale, Md., represented the state.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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