Bladensburg WWI Veterans Memorial case appealed to the Supreme Court

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Bladensburg WWI Veterans Memorial case appealed to the Supreme Court

I'm not going to go fully into a deep dive on this, but will point out some important parts of this case, and point you in the direction of more if you are interested in religious freedom cases to the extent I am.  (And for your sake I hope you aren't quite as interested, because the case law on it is voluminous and will leave you with headaches, since no one can get a grasp on where we stand on any of it at any given moment or as it applies to any given issue.)

But first, we'll start with this from the Washington Post.

Supporters of a towering cross-shaped memorial at a busy intersection in Maryland asked the Supreme Court on Monday to prevent the monument from being moved or destroyed.

The American Legion wants the high court to reverse an appeals court’s ruling that said the monument, on public land and maintained with taxpayer money, is unconstitutional because it “excessively entangles the government in religion.”

The Supreme Court has not given clear guidance when it comes to displays of religion on public sites, allowing some monuments with religious content to stand while rejecting others.

At issue in Prince George’s County is a 40-foot-tall cross built in 1925 to honor local men who died in World War I. The marble-and-cement monument was funded by local families and the American Legion but is now owned by a state agency, the Maryland-National Capital Park and Planning Commission.

That gives you enough to start on.  Go read the whole thing if you can.  Either way, the American Legion, represented by First Liberty has appealed:

Veterans memorials are living reminders of the service and sacrifice of those who gave their lives defending our country’s freedom. However, the U.S. Court of Appeals for the Fourth Circuit declared unconstitutional the historic cross-shaped Bladensburg World War I Veterans Memorial, which has stood since 1925 in honor of 49 Bladensburg-area men who died during WWI. First Liberty Institute intervened in the case on behalf of The American Legion whose seal is prominently displayed at the memorial’s center. First Liberty, working with the law firm of Jones Day, filed a petition for rehearing en banc on behalf of The American Legion. The Fourth Circuit denied the en banc petition. First Liberty and Jones Day will appeal to the U.S. Supreme Court.

Okay, so let me start by saying this, pretty much both sides want this heard by the Supreme Court, largely because the guidance from previous Supreme Court rulings could charitably be called schizophrenic, as is made clear in the questions posed by the brief (FULL BRIEF HERE):

1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross.

2. Whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway, or some other test.

3. Whether, if the test from Lemon v. Kurtzman, applies, the expenditure of funds for routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

I'm going to go through each of these questions briefly.

Question 1 deals with whether a "per se" rule exists.  In other words, does a cross ALWAYS run afoul of First Amendment jurisprudence, or does the feel of the whole area, context and other conditions factor in.

Some Senators and Congressmen (from both parties) weighed in with support for the Memorial in a "Friend of the Court" brief that can be found HERE which addesses this Per Se reading (with internal citations to cases omitted):

The Supreme Court has consistently declined to interpret the Establishment Clause in a way that would sweep away the countless references to religion “that run through our laws, our public rituals, [and] our ceremonies.” To the contrary, it has acknowledged that, when the state “respects the religious nature of our people and accommodates the public service to their spiritual needs,” “it follows the best of our traditions.” Accordingly, official acknowledgments of religion—including in the form of memorial crosses on public property—must be judged by their place in our nation’s history and traditions and by the context in which they appear.

Question 2 then starts by noting that there are three Supreme Court cases that all have different conclusions and logic, and suggests that to square all of them will (possibly) create a fourth "some other test" to figure it all out.

Lemon v. Kurtzman is generally the one everyone starts with, and which wiki lays out thusly:

  1. The statute must have a secular legislative purpose. (Also known as the Purpose Prong)
  2. The principal or primary effect of the statute must not advance nor inhibit religion. (Also known as the Effect Prong)
  3. The statute must not result in an "excessive government entanglement" with religion. (Also known as the Entanglement Prong)
    1. Character and purpose of institution benefited.
    2. Nature of aid the state provides.
    3. Resulting relationship between government and religious authority.

But. while Lemon has some judicial longevity, it is befuddling not just to non-lawyers, but no one even precisely understands it within the legal community, which is why this case made it thus far without resolution.

Meanwhile, in Van Orden, a second test was laid out, which (as the Legion/Liberty petition stated) is roughly this:

In Van Orden v. Perry, this Court considered whether a Ten Commandments monument on the Texas State Capitol grounds violated the Establishment Clause. 545 U.S. 677 (2005). After holding that the Lemon test was “not useful in dealing with the sort of passive monument” at issue, a plurality of this Court looked instead to “the nature of the monument and [] our Nation’s history.” Id. at 686 (plurality opinion). The plurality found the Decalogue’s “undeniable historical meaning” for the nation—highlighted by nearby monuments evoking national history—placed it in “the rich American tradition of religious acknowledgments” which do not violate the Establishment Clause. Id. at 690.

Again, the court in this case used Lemon in deciding that the Bladensburg Memorial was unconstitutional, while those supporting it believed that Van Orden was more proper, in that the Memorial is passive (i.e. it's been there for 90+ years and doesn't involve someone doing anything affirmative to reinforce its meaning) and historical.

Town of Greece is another case which the Friend of the Court brief discusses:

Most recently, in Town of Greece v. Galloway, the Court reaffirmed that the practice of legislative prayer is permissible under the Establishment Clause. In doing so, the Court relied on “our history and tradition,” which demonstrate that legislative prayer can “coexist with the principles of disestablishment and religious freedom.” Significantly, even though the prayers at issue in that case had sectarian content, the Court concluded that their “religious themes provide[d] particular means to universal ends” and that they therefore could “still serve to solemnize the occasion.” Id. at 1823. The dissenters did not reject this premise; instead, they dissented on the fact-intensive grounds that the town had “failed to make reasonable efforts to include prayer givers of minority faiths.” In doing so, they were careful to acknowledge the value of overtly religious traditions.

But, as question 3 notes, even if the court thinks that neither Van Orden or City of Greece is the appropriate standard, do the actions of the state in mowing the grass and keeping the lights on result in "excessive government entanglement" under the Lemon Test?

Note again how we got here...The Memorial was privately funded, privately owned, privately erected and privately maintained for 40 years before a highway grew out of existing roads, and this monument ended up in the middle of it.  The only reason the government (State of Maryland) took control of it was because it was unsafe to have people mowing it and everything else without safety precautions that necessitated the state assistance anyway.

From our petition:

Finally, the Fourth Circuit’s decision here created a new circuit split over whether a government’s expenditure of funds for routine maintenance of a passive display that includes a religious symbol, without more, can violate Lemon’s “excessive entanglement” prong. The Fourth Circuit concluded that the Commission’s “own[ership] and maint[enance] [of] the Cross” constituted “excessive entanglement” because “[t]he Commission has spent at least $117,000 to maintain” the Memorial over the 55-plus years it has owned it, and because, according to the panel, “the Commission is displaying the hallmark symbol of Christianity in a manner that dominates its surroundings.”

Yet the Sixth Circuit has determined that no excessive entanglement existed from a “city’s ownership and maintenance” of a public “friendship bell” that was “strongly associated with Buddhist monasteries . . . much as crosses indicate Christian churches.” Brooks v. City of Oak Ridge.  And the Oregon Supreme Court has similarly held that a city’s ownership and maintenance of a “large cross” in a municipal park was “not alone sufficient to violate the test of ‘excessive government entanglement.’”

I've included links to the petition and the Amicus Curiae (Friend of the Court) briefs above, so you can go read it at your leisure.  But I wanted to end with this from our petition which explains why this case goes FAR BEYOND just one memorial in the middle of a Maryland Highway:

The decision below flouts the “benevolent neutrality” called for by the Establishment Clause. It instead mandates a “‘brooding and pervasive’” discrimination against “all that in any way partakes of the religious,” singling out symbols with religious significance for condemnation even when used to pursue plainly secular purposes.  Not surprisingly, the Fourth Circuit’s decision directly conflicts with decisions from the Second, Fifth, and Tenth Circuits, which have recognized that, notwithstanding a cross’s obvious religious significance, a government may use a cross to reflect secular, historical events with which a cross has become associated.

Left undisturbed, the decision below will have enormous consequences. Most immediately, it will require the state government to destroy or disfigure the Memorial itself—during oral argument, the author of the panel opinion twice suggested cutting off the arms of the cross to remedy the perceived violation. But it will also render unconstitutional the two principal WWI memorials in Arlington National Cemetery, which likewise are freestanding crosses residing in the Fourth Circuit. Further, the decision casts doubt on hundreds of similar monuments using crosses to commemorate lives lost in war, and the many other ways crosses have been used to solemnize or commemorate secular events throughout our Nation’s history.

The decision below, however, is not simply a result of the Fourth Circuit’s misunderstanding of the law, but is a product of the confused state of this Court’s Establishment Clause jurisprudence. As most Justices of this Court have observed, and as the District Court here recognized, “Establishment Clause jurisprudence is a law professor’s dream, and a trial judge’s nightmare.”  Indeed, the Court’s failure to provide clear standards has led to disagreement among the circuits about such basic matters as what test to apply, whether displays should be evaluated from the perspective of a passing motorist or a historically-informed observer, and whether merely owning and maintaining a display constitutes an “excessive entanglement” with religion.

Posted in the burner | 64 comments
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Who owns the land? The people who own the land town, state or organization have control of this land not some who doesn't like what is there. Also this is a marker not necessary a religious symbol. This also is honoring people who gave their lives for the world. I ask did the judge serve and did who ever complained serve or are these the ones who like the benefits from other people doing the work for them.

I agree that any Judge that wants to remove any of our Country's Memorial Statues should be first de barred, then deported! !

The people who do the most complaining are those whose upbringing was lonely and sad. More than likely they had no love in their lives and hated one or both parents. It may also be an inferiority complex. We will pray that they start to feel better about themselves and find a higher power. It is a fact that more than 90% of Atheists pray at the final hour. Sad!!! In the meantime we should buy all the land that these crosses etc. occupy and volunteer to pay for the cost of any upkeep and tax. That will settle any stupid dispute that comes up in the future.

The background of "establish" was the idea that a king ruled through a system of churches. Therefore, for a king to rule, everyone must belong to the same church. This meant that in every country there could be only one church--which was established by the State. This 'establishment principle' was why European countries established a state church. As for "a wall of separation between church and State', this is a quote from a personal letter by Thomas Jefferson, not from the Constitution. Jefferson quoted Roger Williams, who said that a wall was needed to insulate the church from the pollution of politics. I.e., the wall was to protect the church. It was not to insulate the people from religion.

The background of ‘establish’ is the ‘establishment principle’ held in England and Europe at that time. “No bishop no king” meant that a king was to rule the people through a country-wide system of churches headed by a bishop—who answered to the king. Thus, everyone had to belong to that system of churches. Therefore, in every country there must be one, established church. This is the reason for state churches. As for ‘a wall of separation between church and state’, this is a quote from a personal (not official) letter by Jefferson, not from the Constitution. Jefferson alluded to what Roger Williams said about the need for a wall to keep politics from polluting churches (as happened in state churches). Roger William’s concern was the purity of churches, not the intrusion of churches into the public sphere.

What's next, removing all crosses and stars of David at Arlington Cemetery, and Veterans Cemetery?

What's next, removing all crosses and stars of David at Arlington Cemetery, and Veterans Cemetery?

So are all the crosses and Star of David's going to be removed from the American Cemeteries, such Arlington?????

As a combat wounded veteran and a self-declared spiritualist with absolutely no connection for any formal religion, I see no reason to remove any memorial to our fallen servicemen. It doesn't bother me one bit to see, crosses, etc. on memorial. I do not think anyone goes to these monuments to hold formal religious ceremonies but to rather, HONOR the fallen.

In memory of those who have fallen, let it stand.

Any changes to any war memorial is wrong. If you disagree, regardless of the memorial, confederate or otherwise, you are a peice of shit.

We will not allow cross on public land to honor veterans, but we will allow crosses on all the headstones at Arlington National Cemetery? We all need to pull out heads from where the sun don't shine and figure out how to consistently honor everyone without violating free speech. I like it, so it is my free speech to have it. If you don't like it, it is your free speech to not have it, but you can't infringe on my free speech. Grow up and act your age, instead of a two year old who gets butt hurt over everything that you don't like.

This doing things the 0.000001% wants done has got to stop already.! Live with it @$^%$


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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.