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Media Alerts - American Humanist Association v. Maryland-National Capital Park and Planning Commission -- Fourth Circuit
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November 21, 2017
  American Humanist Association v. Maryland-National Capital Park and Planning Commission -- Fourth Circuit
Size Matters: Court Declares 40-Foot World War I Cross Memorial Unconstitutional

Areas of Law:
Constitutional Law, First Amendment, Establishment Clause

Issue Presented: Whether a local government violates the Establishment Clause of the First Amendment when it displays and maintains a forty-foot tall Latin cross, which was established in memory of soldiers who died in World War I?

Brief Summary: The United States Court of Appeals for the Fourth Circuit, applying the three-pronged Lemon test, held that the monument had the "primary effect of endorsing religion and excessively entangle[d] the government in religion." In support of this, the court cited to the fact that the cross was at one of the busiest intersections in Prince George's County, Maryland, that its secular elements failed to outweigh its religious purposes, and that the government had spent thousands of dollars for its maintenance.

Extended Summary: In 1918, several Prince George's County residents began fundraising to construct a cross to memorialize 49 residents who died in World War I. In 1922, the original organizers ran out of money and so the Snyder-Farmer Post of the American Legion took over the project. The monument was completed in 1925 and a Christian prayer service was held at the dedication ceremony. The court noted that veteran's memorial services, as well as Sunday worship services have been held at the cross.

The Maryland-National Capital Park and Planning Commission ("the Commission"), a state entity, acquired the cross in 1961 because of safety concerns regarding the cross' placement in the middle of a busy intersection. Since then, around $117,000 was spent maintaining the cross. In 2008, another $100,000 was set aside for renovation of the cross.

The cross itself is a forty-foot structure with the American Legion's symbol located near the top and with an American flag nearby. Around the base of the cross are the words "valor", "endurance", "courage," and "devotion." A plaque which contains the names of the individuals who died and a quote from Woodrow Wilson is on the base of the cross but is obscured by bushes. The cross stands alone in a median at the busy intersection of Maryland Route 450 (formerly known as the National Defense Highway) and U.S. Route 1, but is part of a memorial park honoring veterans in the area.

Appellants Steven Lowe, Fred Edwords, and Bishop McNeill, all non-Christian citizens of Prince George's County brought suit under 42 U.S.C. § 1983 against the Commission for violation of the Establishment Clause, arguing that the Cross amounted to government affiliation with Christianity. The American Humanist Association sued on behalf of its members. The Fourth Circuit found the appellants had standing, since anyone who has "unwelcome direct contact with a religious display that appears to be endorsed by the state" has a sufficient injury. Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th Cir. 1997).

The district court analyzed the claim using the Lemon test, derived from Lemon v. Kurtzman, 403 U.S. 602 (1971). It found the Park Commission had legitimate secular purposes of maintaining a highway median and commemorating veterans. Further it found the cross did not advance or inhibit religion because people use the memorial for veteran events, the cross is a commemorative symbol of World War I, there are secular war memorials around it, and the secular attributes of the cross, such as the American Legion symbol, made it clear it was not a religious symbol.

On review, the Fourth Circuit also applied the Lemon test to determine whether the cross violates the Establishment Clause's guarantee that government will "make no law respecting an establishment of religion." U.S. Const. amend. I. Under the Lemon test, a memorial (1) must have a secular purpose, (2) must not have a "principal or primary effect" that advances, inhibits or endorses religion, and (3) may not foster an "excessive entanglement between government and religion." The court held that while Breyer's concurrence in Van Orden v. Perry, 545 U.S. 677 (2005), provides guidance for the "passive" monument context, it does not overrule Lemon. Thus, while things such as the circumstances surrounding the monument's placement, the physical setting of the monument, and the length of time the monument went unchallenged may be considered, the ultimate test is the Lemon test.

As to the first prong of the Lemon test, the court held that the maintenance of highway safety and the preservation of a significant war memorial satisfied the secular purpose. In determining the second prong, the court found that the Latin cross is "exclusively a Christian symbol" and the fact that other countries have used it to memorialize World War I does not outweigh its religious significance. While this cross had a semi-secular history, the Fourth Circuit held that the sectarian elements of the cross overwhelmed the secular ones, and the immense size and prominence evoked a message of universal religion. The court focused on what a reasonable observer, who is aware of the history and context of the community and forum, would believe the cross stood for. Given the history, the court found that a reasonable observer "could not help but note that the Cross is the most prominent monument in the Park and the only one displaying a religious symbol." Finally, as to the third prong, the court found that given the spending of government funds on the cross and the size of the monument, ownership constituted excessive entanglement with religion.

The court noted that the Commission's and supporting amici's concerns, which equated this cross with the crosses in Arlington National Cemetery and other locations, were misplaced. Because Establishment Clause cases are fact intensive, the court made clear it was not making a decision as to those crosses. Further, the court noted that the Arlington crosses are much smaller and contain diverse religious symbols.

In his dissent, Chief Judge Gregory focused on the purpose of the Establishment Clause, stating that neutrality is a "touchstone" of the Establishment Clause. This neutrality should not be viewed as a devotion to the secular or as a hostility to the religious. Abingdon School Dist. v. Schempp, 374 U.S. 203, 306 (Goldberg, J. concurring). Judge Gregory focused on the patriotic nature of the American Legion and the fact that only three religious services were held at the cross, all in 1931. Judge Gregory felt the majority constructed a reasonable observer who would ignore certain elements of the memorial and reach unreasonable conclusions. He also took issue with what he viewed as the majority's focus on size, stating that no guiding principle could be gleaned from its discussion. Judge Gregory reasoned that given the context of the cross, it did not constitute an endorsement of religion or excessive entanglement.

To read the full opinion, click here.

Panel: Gregory, Chief Judge, and Wynn and Thacker, Circuit Judges

Argument Date: 12/7/16

Date of Issued Opinion: 10/18/17

Docket Number: 15-2597

Decided: Reversed and remanded by published opinion. Chief Judge Gregory concurring in part and dissenting in party.

Case Alert Author:
Jennifer Smith, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Monica Lynn Miller, AMERICAN HUMANIST ASSOCIATION, Washington, D.C., for Appellants. Christopher John DiPompeo, JONES DAY, Washington, D.C.; William Charles Dickerson, MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, Riverdale, Maryland, for Appellees. ON BRIEF: David A. Niose, AMERICAN HUMANIST ASSOCIATION, Washington, D.C.; Daniel P. Doty, LAW OFFICE OF DANIEL P. DOTY, P.A., Baltimore, Maryland, for Appellants. Adrian R. Gardner, Tracey A. Harvin, Elizabeth L. Adams, MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, Riverdale, Maryland, for Appellee Maryland-National Capital Park and Planning Commission; Noel J. Francisco, JONES DAY, Washington, D.C.; Roger L. Byron, Kenneth A. Klukowski, FIRST LIBERTY, Plano, Texas, for Appellees The American Legion, The American Legion Department of Maryland, and The American Legion Colmar Manor Post 131. Patrick C. Elliott, FREEDOM FROM RELIGION FOUNDATION, Madison, Wisconsin, for Amici Freedom From Religion Foundation and Center For Inquiry. Eric C. Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C.; Paul J. Zidlicky, SIDLEY AUSTIN LLP, Washington, D.C., for Amicus The Becket Fund for Religious Liberty. Charles J. Cooper, David H. Thompson, Howard C. Nielson, Jr., Haley N. Proctor, COOPER & KIRK, PLLC, Washington, D.C., for Amici Senator Joe Manchin and Representatives Doug Collins, Vicky Hartzler, Jody Hice, Evan Jenkins, Jim Jordan, Mark Meadows, and Alex Mooney. Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Julie Marie Blake, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amicus State of West Virginia; Steve 3 Marshall, Attorney General of Alabama, Montgomery, Alabama, for Amicus State of Alabama; Mark Brnovich, Attorney General of Arizona, Phoenix, Arizona, for Amicus State of Arizona; Leslie Rutledge, Attorney General of Arkansas, Little Rock, Arkansas, for Amicus State of Arkansas; Pamela Jo Bondi, Attorney General of Florida, Tallahassee, Florida, for Amicus State of Florida; Christopher M. Carr, Attorney General of Georgia, Atlanta, Georgia, for Amicus State of Georgia; Douglas S. Chin, Attorney General of Hawaii, Honolulu, Hawaii, for Amicus State of Hawaii; Lawrence G. Wasden, Attorney General of Idaho, Boise, Idaho, for Amicus State of Idaho; Curtis Hill, Attorney General of Indiana, Indianapolis, Indiana, for Amicus State of Indiana; Derek Schmidt, Attorney General of Kansas, Topeka, Kansas, for Amicus State of Kansas; Andy Beshear, Attorney General of Kentucky, Frankfort, Kentucky, for Amicus State of Kentucky; Jeff Landry, Attorney General of Louisiana, Baton Rouge, Louisiana, for Amicus State of Louisiana; Bill Schuette, Attorney General of Michigan, Lansing, Michigan, for Amicus State of Michigan; Timothy C. Fox, Attorney General of Montana, Helena, Montana, for Amicus State of Montana; Adam Paul Laxalt, Attorney General of Nevada, Carson City, Nevada, for Amicus State of Nevada; Wayne Stenehjem, Attorney General of North Dakota, Bismarck, North Dakota, for Amicus State of North Dakota; Michael DeWine, Attorney General of Ohio, Columbus, Ohio, for Amicus State of Ohio; E. Scott Pruitt, Attorney General of Oklahoma, Oklahoma City, Oklahoma, for Amicus State of Oklahoma; Peter F. Kilmartin, Attorney General of Rhode Island, Providence, Rhode Island, for Amicus State of Rhode Island; Alan Wilson, Attorney General of South Carolina, Columbia, South Carolina, for Amicus State of South Carolina; Marty J. Jackley, Attorney General of South Dakota, Pierre, South Dakota, for Amicus State of South Dakota; Ken Paxton, Attorney General of Texas, Austin, Texas, for Amicus State of Texas; Sean D. Reyes, Attorney General of Utah, Salt Lake City, Utah, for Amicus State of Utah; Mark R. Herring, Attorney General of Virginia, Richmond, Virginia, for Amicus Commonwealth of Virginia; Brad D. Schimel, Attorney General of Wisconsin, Madison, Wisconsin, for Amicus State of Wisconsin.

Author of Opinion: Judge Thacker

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/21/2017 03:43 PM     4th Circuit  

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