Federal Court rules Bladensburg Cross unconstitutional, TAL to appeal to the Supreme Court

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Federal Court rules Bladensburg Cross unconstitutional, TAL to appeal to the Supreme Court
Editor's Note: The major complaint people seem to have in the comments is that the Legion is spending money on this.  Let me put your mind to rest, we are not.  No funds are being used for this.  First Liberty is representing us Pro Bono, i.e. no funds are being spent on this.  The second is that we should be supporting the Constitution, not fighting it.  Well, the constitutionality of issues is determined by the Supreme Court (see for example Marbury v. Madison) and we are asking them to do just that in this instance.

I won’t go too far into the weeds on this one yet, as the appeal hasn’t been written, but everyone is asking about it, so I might as well cover the decision and overarching legal basis:
A federal appeals court is standing by a ruling that calls for the removal or destruction of a large cross-shaped monument on public land that has towered over a busy Maryland intersection for nearly 100 years.
In a closely divided vote, the U.S. Court of Appeals for the 4th Circuit refused to reconsider an earlier decision that found government funding for the 40-foot-tall memorial in Prince George’s County an unconstitutional endorsement of religion.
The 8-to-6 vote drew passionate dissents from several judges and could end up before the Supreme Court, which has not provided clear guidance about displays of religion on government land.
Supporters of the Peace Cross, who say it is a secular tribute to local men killed in World War I, vowed to appeal.
“We cannot allow it to be the final word,” said Hiram Sasser, deputy chief counsel for First Liberty, a religious-freedom organization representing the American Legion. “If this decision stands, other memorials — including those in nearby Arlington Cemetery — will be targeted for destruction as well.”
To supporters, like TAL and First Liberty that is representing us, the 100 years thing is important.  From a dissent:
Forty-nine names appear on the plaque at the base of the Great War memorial in Prince George’s County. Aggregate figures do not do justice to individual soldiers. Each name marks the tragedy of a life lost before its time. Each death marks a worthy sacrifice.
We honor those Americans who died serving their country in different ways. Families respect their fallen sons and daughters in pictures, prayers, and memory. Their country honors them in ceremony, as at Memorial Day, but more often with quietude.
The dead cannot speak for themselves. But may the living hear their silence. We should take care not to traverse too casually the line that separates us from our ancestors and that will soon enough separate us from our descendants. The present has many good ways of imprinting its values and sensibilities upon society. But to roil needlessly the dead with the controversies of the living does not pay their deeds or their time respect.

This memorial and this cross have stood for almost one full century. Life and change flow by the small park in the form of impatient cars and trucks. That is disturbance enough.  

Veterans Memorial Park may not be Arlington National Cemetery, but it is the next thing to it. I would let the cross remain and let those honored rest in peace.
 The case essentially pits Supreme Court decisions against each other.   In holding the cross violates the constitution, the court found:

In seeking rehearing of this case en banc, Petitioner Maryland-National Capital Park & Planning Commission, a state entity (the “Commission”), again asks this Court to hold that Maryland’s ownership and maintenance of the Bladensburg Cross—a 40-foot tall Latin cross erected at an intersection in Prince George’s County—does not have the “principal or primary effect” of advancing the Christian faith. Appellee’s Pet. for Reh’g En Banc at 12. Rather, according to the Commission, this Court should conclude that the Bladensburg Cross has lost its predominantly sectarian meaning, to the extent that it ever had any such meaning, and now stands as a symbol of the soldiers who died on the field of battle in World War I.
But the Latin cross has for centuries been widely recognized as “the pre-eminent symbol of Christianity.” Nothing in the First Amendment empowers the judiciary to conclude that the freestanding Latin cross has been divested of this predominately sectarian meaning.
Our holding that the State’s ongoing ownership and maintenance of the Bladensburg Cross violated the Establishment Clause recognizes that to hold otherwise would require this Court to accept the Commission’s conclusion that the Latin cross does not have the “principal or primary effect” of advancing the Christian faith. To give the judiciary the power to prescribe and proscribe the meaning of an unadorned, traditionally religious symbol like the Latin cross would infringe on intensely personal and sacred questions of religious meaning and belief. 2 Such governmental prescription of religious belief would serve only to “degrade religion”—one of the principal outcomes the Framers of the Religion Clauses sought to forestall. Engel v. Vitale, 370 U.S. 421, 431 (1962).
However, in so finding, they seem to have dismissed a case called Van Orden, in which the Supreme Court looked at “historicity” among other things to place the monument in context.  From a dissent:

The panel, in a 2-1 decision, will now have the monument removed or destroyed because, as it concludes, its presence on public land amounts to a violation of the Establishment Clause, although no Supreme Court case has ever held that the Establishment Clause prohibits such monuments. Indeed, it has held to the contrary —that “the Establishment Clause of the First Amendment allows the display” of monuments like the one here. Van Orden, 545 U.S. at 681 (emphasis added) (plurality opinion) (holding that the Establishment Clause allows a large granite monument inscribed with the Ten Commandments to stand on the grounds of the Texas State Capitol); id. at 700–01, 703–04 (Breyer, J., concurring in the judgment). The panel opinion seeks to distinguish Van Orden on the ground that the cross as a symbol “differs from other religious monuments, such as the Ten Commandments” because the Ten Commandments is “well known as being tied to our Nation’s history and government” and because, unlike the monument at issue in Van Orden, the monument here is “conspicuously displayed at a busy intersection.” The panel further rationalizes that when crosses are ordinarily used to commemorate fallen soldiers, such as in Arlington National Cemetery, they “are much smaller than the 40-foot tall monolith at issue here.” The opinion, however, fails to recognize that there are similarly sized monuments incorporating crosses in the Arlington National Cemetery — indeed, also elsewhere nearby. The panel opinion directs the district court, which had held that the Establishment Clause was not violated by the monument, to consider on remand whether the arms of the cross should be “remov[ed]” or the cross entirely “raz[ed],” or other “arrangements [could be made] that would not offend the Constitution.”
…It strains established judicial analysis to conclude that Van Orden does not allow the monument in this case to stand as a secular memorial to the lives of soldiers lost during war in service of the Nation. The panel decision not only wrongly distinguishes Van Orden, but, in doing so, also offends the monument’s commemoration of those soldiers’ sacrifice. Moreover, it puts at risk hundreds, and perhaps thousands, of similar monuments.
The Establishment Clause was never intended to be so interpreted, and the Supreme Court has never so interpreted it.
The dissent notes the very reason that Liberty First and The American Legion are appealing.  As First Liberty noted:
No Supreme Court case has ever held that the Establishment Clause of the First Amendment prohibits monuments like the Bladensburg Memorial.

It has said the very opposite. Supreme Court precedent shows that the First Amendment allows the display of such monuments.

We’re preparing to fight this case to the very end. We must do everything we can to overturn the Fourth Circuit’s opinion. We cannot sit idly on the sidelines and let this become an ugly national purge of our nation’s sacred and historic monuments.

EDITOR'S NOTE: If you leave a comment, and don't see it immediately, take heart, you are not being censored. Because we get so much spam, I have to okay each comment as it comes in. If you leave a comment after work hours I will probably get to it fairly quickly, but with a 2.5 year old and twin 7 month olds, sometimes I am just super busy. But it will show up unless it has profanity or something of that nature. WE ARE NOT CENSORING YOU. It just has to be approved, or we end up with people trying to plug witch doctors. (yes, really)

Posted in the burner | 126 comments
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Serves no purpose get it gone
Another unsightly monument

Al macklin (not verified) March 8, 2018 - 12:58pm

'Serves no purpose get it gone
Another unsightly monument'

What purpose do you serve, Al Macklin? This cross isn't hurting anything, it is not causing any problems. It should stay.

Didn't those in uniform take an oath to GOD for the state

I agree with the courts inasmuch as this cross implies that Christianity is the religion of all buried there; and does not represent nor recognize the Jews and Muslims also buried there. Do Jews need to erect a giant Star of David, and the Muslims a gieant Cresent & Star? How grotesque an appearance to see such giant religious symbols erected on this burial ground!! Our constitution does protect all our religious rights; but are we then to ask the courts to allow this giant cross, but no other religious symbol? Let is continue, as we did at Arlington, to place our symbols at the heads of our fallen - be it a cross, a star, or a crescent moon. We were equal in battle, let us be equal in the grave.

"Do Jews need to erect a giant Star of David, and the Muslims a giant Cresent & Star?" NO, they oidn't. However, THEY chose NOT TO erect a monument to THEIR dead soldiers. They were NOT prevented from doing so! SEE THE DIFFERENCE? And to most of us, the Cross is NOT UGLY! You are just a racist SOB exercising your right to free speech! Bless you, my Godless friend.

Love your use of CAPS. Your logic though.... just because THEY chose NOT to set up a RELIGIOUS display does not mean that a MEMORIAL on public land SHOULD be RELIGIOUS in DESIGN. FACT IS I never asked the guys I DEPLOYED with which God (if any) they follow.

A Jewish vet, son of a Jewish vet, nephew of multiple Jewish vets

Me Tooooo!! CAPS are good, in the right place. Shabbat Shalom!

You should note that this is not a burial ground. It seems that you decided to get offended about something before you even understood what it was. This is precisely the problem we have these days. Many people cease to try to understand, but rather try their hardest to find fault.

From what I can see in this and other articles, this is a memorial to the 49 men from Bladensburg that died in WWI. It is not a cemetary, it is a memorial park. The American Legion erected the memorial, who is to say they weren't all Christian? It was rural Maryland after WW1. It is not a memorial to all of the veterans who died in WW1. Many communities put up memorials to their own veterans. Just why would you feel the need for expanding to include all other religions?

Our Constitution guarantees us freedom OF religion NOT freedom FROM religion. It's amazing the lengths some will go to in order to twist and pervert that freedom!

A recognition that a symbol, be it a cross a five pointed star a statue the Sun or a tree, is associated with a certain religious belief does not constitute the promotion of it.

The cross should definitely stay. What is wrong with the people wanting its removal? We as a society cannot cater to such a small element of people with ridiculous aspirations. Fight this all the way, go back and read papers of our founding fathers. This cross is symbolic of our Republic's History. What causes this antagonism? We took God & Ten Commandments out of the schools. The Churches are afraid to say anything because they want an unnecessary 501(c)3. Christians do not stand for what they are supposed to believe & support. Boy, do we need Jesus to awaken the so called Christians in our once great Republic. Let us storm Heaven with our prayers. Thanks. Art LeBeau, Villa Ridge, Mo Christian & Conservative)

the constitution does not state that church and state are to be apart, it simple says that we will have no official religion, but not that we will have no religion

Just put a sign up on the cross that says quote not to be Associated or confused with anything related to the Christian faith unquote. Hahaha.

I disagree with EG Jerry Farris's comments and firmly believe that this country was founded by Christians and that most, if not all, who fought in WWI were Christians. Regardless of whether or not there were soldiers of other religions represented by the cross, the fact is that it was erected years ago - before all of this contemporary CRAP and POLITICAL CORRECTNESS of this age. Let the cross stay as it was intended at the time it was placed on that piece of land. Let history be unchanged by political correctness.

I couldn't agree more it seems that Christians are trying in every way to make us a Christian theocracy the Constitution of the United States guarantees the separation of Church and State if they want to erect a like sized monument for every religion that is represented in that cemetery then go for it. We all took and oath to defend the constitution and I think the courts decision is 100% right

Personal feelings toward religion aside....

You can't use religious iconography and call it secular. That is the same as saying grace before a meal and calling it a secular part of the meal. Facing the East and praying five times a day isn't a secular way of embracing your heritage and culture.

Monuments are a good thing in most cases, but if it was actually about the service personal from WW1, the shape of the mold didn't reflect it. If this is really about maintaining a 100+ year old monument, or actually honoring the people it was intended to, it seems like a simple fix to me. Remove the cross member from either side and maintain the 100+ year old monument as a monolith. It seems to work out well for the Mall in DC, why not Maryland?

The obelisk was originally a religious symbol for the Egyptians, so wouldn't that also violate the constitution based on your reading of this case?

You are absolutely correct. The obelisk was originally used by the Egyptians to celebrate Ra. Then the Greeks and Romans co-opted it for their own use leaving Ra behind. Fast forward a few years and it is now a ubiquitous piece of architecture. The world has outgrown its belief in Ra, turned Thor and Odin into comic books and movie stars. Who knows, given another couple of years, maybe we can all agree to let one more imaginary friend go about its merry way and the cross can get there too.

Until such time, I think it is stretching it a little bit to put an obelisk and a cross on the same level of current religious significance.

But hey, this is just my 2¢. Everyone here has just as much right to theirs. I appreciate these forums when people can actually have a conversation about things and not devolve into a shouting match that boils down to "your ideas aren't as important as mine."

Our Constitution was written by Christians. Because Christ accepts all people, and loves them unconditionally, other religions have freedom in this great nation under God. To destroy Christian symbols is unconstitutional, and criminal.

Regardless of the court case or the arguments for or against, the Monument itself should be eligible for National Historic Preservation status.

Separation of church and state was for the state to stay out of the church and not the other way around.

I find it interesting that after 100 years this is an issue. It’s time to make the liberals to go after the real problems in this country, like gangs, human trafficking and drugs. Maybe then we could clean up our streets.

I think its time to drain the swamp!!!!!! This is getting just ridiculous !!!

Why not buy the land and turn it into a privately owned memorial

Those Doughboys ("OUR GRANDFATHERS") gave the Supreme Sacrifice,
We Should back The American Legion to Win This!

Why not buy the land and turn it into a privately owned memorial

You know every man named on that and every other memorial was praying to God as they died for our freedoms. The cross is a symbol of the Christian morals our country is founded on. Atheists should also live with some kind of morals.

I am on the side of history, not the modern desire to destroy the base culture. I am also not a Christian. Let this monument to our honored dead stand.

Remove these liberal judges from the bench!!!our

What next the American Flag.

I agree with the ruling,you do your thing and I'll do mine. However it will not be on state property.

Soon, some idiots will say WWII never happened.

Just wondering. If the majority of men(almost all were baptized Christians) who signed up to fight in WWI and WWII knew a cross over their graves on govt owned property would prohibited if they were killed, would they have volunteered to put their lives on the line? Something tells me the answer would be "no".

Attempts to once again to destroy the historical significance of those that served, in this conflict or any other. So sad to see how the supposed "public" want to remove all historical markers.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" is what the Constitution says in the beginning of the first Amendment. It seems appropriate to interpret this as saying that we should treat all citizens the same whatever they claim to believe or not believe. This can be a big problem when one religion is dominant. It is very difficult to keep members of the dominant religion from stepping on or ignoring the beliefs of members of minorities. I think this makes it even more important for Christians to bend over backwards to accommodate those others.

I have to ask what the constitutionality of a religious symbol on public, not American Legion or other veteran owned property has to do with the American Legion? I, and many of my friends and spouse joined this organization to ensure a voice on Capitol Hill for honorably discharged veterans from all backgrounds and walks of life.

If fighting to keep a religious symbol on public land (which, BTW, is patently unconstitutional) is where our dues are going - as opposed to ensuring and securing the rights and benefits of ALL US armed services veterans, we'll be resigning our memberships. Perhaps the national organization can take that hit, but as local posts are forced to close because coming generations of veterans such as ours see that our dues are being spent on personal political agendas rather than where they should be, you'll feel it.

That monument was erected many many years ago and not with a full religious tone -- but to honor those that had fallen just so these ass wipes today can whine and complain it hurts their eyes or offends their beliefs. Well I'm a Legion member and have talked with many that have stood a line or have had their offspring stand that same line and not be here today to give their say, But I believe it to be true Many have gave of themselves, some survived, many have not and it was for this reason a monument was erected, proposed to the elected officiating body, voted on by, passed by and "assisted" funding by. So basically if it offends take a different route to work, nothing available "well" pack your bags and find the nearest route back to your homeland where I guess you can have this right to express your opinions/views/beliefs -- This was an American Legion venture back in the day as it should be today, to ensure it stands for what it was originally erected. You do realize give them an inch their going to want a mile. -- Never erected a Christmas tree outdoors but I cant go to the mall, any public building, no place so I now have 3 living on a corner lot, dont like it should have left it alone, last year from 3 to 15, next year who ever didn't like a single fucking tree can now drive down a road filled with them. As with this monument, if it goes down well what's one versus 50 on private land of course, no governmental support (AH just the decision to send your 18 year old into a life or death battle giving him the 50/50 shot of having a say in the future or the 6' blanket of american soil ) I don't live in that area but I'd donate to have it moved off that micro piece of my land (you know I'm part of the public) just to have it moved onto private property versus destroying it. Sorry to see you go, suggest opening them blinders, Theres been many wars, many tributes, oh so many that were at and in their time supported by the local agencies, local merchants, the people and , the governmental bodies to a point they get this contributed to (not paid by), etc. Don't see in article who's land it's on private, or public but simple recourse on public move it, Why destroy it?

Constitution. Read it

City should deed a small parcel of the land which includes the cross to a private entity.
In turn that private entity will develop a plan to maintain the Cross for all to enjoy!.

Historical land site

If the shape of this molument was a circle or oval or of a WW1 helmet would that be acceptable? If so then why not an intersection? Is that not what the shape of a cross is? This particular monument was selected almost 100 years ago to honor these fallen soldiers no matter what the shape. It was not an issue then and should not be an issue now. Too many people are trying to read something into what they precieve without knowing the background and they have no business doing so. They stick their noses into places they don’t belong. They should get over themselves. If they don’t like it, don’t go there. They are trying to make something out of nothing!

This country was founded on religious freedom to worship however we want or not. Why are they trying to take this away? Sounds like a commie takeover to me. No one is forcing anyone to belong to any of these groups. But don't take away our freedom to chose.

We need to leave America like it was when our forefathers fought so bravely to make us free
With all these liberals making changes then maybe they should get their own country and form it the way they want it.
I say Good Bye to all of you.

ISIS destroyed religious statues that were a part of history in the countries they controlled.
Now we see similar things happening here.
why not put a big letter D in its place and see if they complain?

Sell the land the cross is on, move the cross or take down the cross and put up a flag poll flying old glory. Our flag is the symbol for all Americans not a cross. Place a stone with the names of the fallen engraved upon it. The marines did not raise the cross on Iwa Jima. They raised the American flag. Should we replace the flag on that statue with a cross, The Star of David or the Crescent Moon. No of course not. And way? Because it's our flag that units us as one people, one nation. Sell the land, move the cross or change the memorial.

The Cross is a symbol of Jesus, is it not? Therefore it symbolizes the Christian belief. Therefore it represents some American soldiers and some American citizens and some members of the American Legion and some members of Prince Georges County.. Let the Christian Churches buy the land (They don't pay taxes on their lands anyway) and then the Cross truly represents what it has historically represented: belief in the Christian faith (as different from the belief in God). Or, of course, the Cross could be universally accepted as a symbol of Service to Our Country, not as a symbol of Christian belief.

I am a army vet & I belong to the Legion let the cross stand we should all thank God for our freedom & not think the cross means anything but to hornor those soldiers IN GOD WE TRUST

So many here are deluded when they say our nation was founded on God. It was founded by men who composed the US Constitution and if they would bother to read the document, they would not, in any of the 27 amendments, find the word, God. They will find quite early on the Establishment clause. The government can not in anyway, shape, or form, side with any religion. Why is the American Legion wasting money defending this obviously unconstitutional monument? The military fights to uphold the constitution even if the establishment clause ruffles some, most, or even 99.99% of peoples feathers. Defend instead this most important part of our constitutional document and stay out of religious matters all together!

There is no case for or against a Constitutional provision...simply because, THERE IS NO provision in the United Stated Constitution regarding separation of Church and State. The simple context of such is generated in a letter from Jefferson to the Massachusetts Baptists noting that he could not, as President, overturn a state-law on religion, as he had no authority as a REPRESENTATIVE OF THE FEDERAL GOVERNMENT GIVEN THE RIGHTS OF THE STATE AS MANDATED IN THE CONSTITUTION. Amazing that even our courts, tasked to interpret the context of the Constitution and laws mandated by Congress, simply can't ever get this one right. The Supreme Court needs simply to say "There is no Constitutional basis..." and it's done, never to be challenged again.


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News from the World of Military and Veterans Issues. Iraq and A-Stan in parenthesis reflects that the author is currently deployed to that theater.