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)
    Factors.
    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 | 63 comments
 
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Comments

Replace the cross-shaped memorial with something that has no religious significance. Not all who serve(d) are Christian, and this statue is not a "passive display." Mixing religious iconography with military memorials can be seen as a governmental endorsement of a particular faith. It's best to remain neutral and secular in situations such as this.

I completely agree with Chad. We should not be wasting our resources defending a religious monument. It's bad enough we're stuck with a quasi-religious motto (which needs to be updated), we don't have to throw good money after bad by wasting time fighting for something not everyone believes in.

The Washington Monument is based on the Egyptian Obelisk, which itself honors the Sun God Ra.  Presumably you think that also should be torn down or no?

Is anyone currently worshiping Ra, or using ancient Egyptian mythology to dictate legislation? That was a laughable comparison, sir.

So whether a religion is disfavored would be due to how many practioners there are?  That's a pretty bad slippery slope, but if you can find me a Supreme Court precedent that states that I will concede.

You are wrong my friend, it is a good comparison. I don't like the idea of having an Egyptian symbol in my country. Get rid of it! Some people worship cows. When I drive in the country, I see cows, they offend me. Get rid of all cows! The asp was a icon of Cleopatra and I don't think we should have snakes as icons. Get rid of all asps! Some people worship other people, movie stars, members of a rock and roll group, that offends me. Get rid of all people! Anyone think I would be a good member of the "nutsy" idiots out there? By the way, anyone who thinks I was as serious in the above ramblings, let me tell you my cheek is sore from my tongue being pressed hard against it.

There are plenty of Freemasons and various occultic groups that are spinoffs of Crowley that certainly buy into the religious-mystical symbolism of Egypt. It's a phallic-fertility symbol, ultimately, that is aligned at a particular point with Sirius (you can do your own research on why). But, regardless of all that, it is part of the country's historical record that each state had an official church and used the Bible in its schools. The "separation of church and state" is no where in the Constitution and was used by secularists to conduct a silent war against Christianity. The principled posturing of so-called enlightened, liberalism that seeks some sort of Rawlsian agnosticism regarding metaphysical commitments regarding the good or "ultimate things," is laughable. It is psychological warfare aimed at erecting a monstrosity in the absence of the Cross -- see the Soviet Union for more.

Tell that to thw WW1 victims families. You have the right to your opinions, but that right was fought for the people who served and died for that right. Now for my opinion. Your an IDIOT.

It's "you're."

If you don’t like the foundations of the country that my fellow servicemen and women fought for please start a “Go Fund Me” page so you can permanently leave. And oh by the way it is “Freedom of Religion” NOT Freedom FROM Religion!! Get a grip!

This in no wise contravenes the establishment clause. The memorial was built on private property, with private funds. That the entity that built it has gone, the memory remains the same. That a governmental agency has inherited the monument matters not at all. The government is merely a caretaker for those who are being honored, and remembered.
Anyone who can construe this as an endorsement is way off base.

Why not just move it to private property, as is being done w/ some Southern Civil War monuments?
does a local AL or VFW have some space on their lawns? One would think either would be glad to adopt it.

Chad - agree with others - you're and idiot

A cross is a symbol of death. Many people in history died on a cross, secular and christian.
It is that remembrance of their sacrifice that they stand for.l

You are almost right in that we should not be wasting resources defending a memorial that is currently there. The fools are the ones who started this mess. Religious belief notwithstanding, leave it up and go cry about something else. When we stop being the nation that has all been "created" (by whom???) equal, then start removing anything that honors God so that we may receive our just reward.

I stand with the American Legion when they say let the Gold Star Mother's Memorial stay as is, where it is. These women had this memorial erected on then private property with private funds to memorialize the loss of their sons during war.

You are both fools. Not all who serve are Christian that is true. So when they build a something to their faiths fallen we can let it stand too. We do not need to tear everything in history down to fit your current feelings.

For those who would want this memorial removed need only read the comments. It's too bad that our government runs scared from the mindless who want all religions removed along with American flags. What we need are strong judges and representatives of the people. Americans who are not afraid to say, "enough is enough". I fought for our flag and religious freedom. If you want a "soap box", stop the Muslim's from praying in the streets surrounding Times Square which is only done yearly. If you cannot do that, do something useful with your lives. Stop bitching! Do something useful for your country or find another one.

These brave hero’s and many others through the years died so that unamerican individuals could look at something like this and be offended. Heck we might as well raze ARLINGTON National Cemetery while we are at it. Do us all a favor and go find another country to live in that has more freedom and a better quality of life than the USA.
God bless America

Next you are going to want ALL the crosses on gravesites removed from the WWII vets who died for this country and are buried in France! GIVE IT A BREAK! It hurts NOBODY. over 90 years no problem. Why is it now? I bet more money has been spent in the past few years pushing and fighting this lawsuit than the LOCAL government has paid in the 50+ years!
As others said, let the legion pay to maintain it. Lease the plot of land that is 50' around it in all directions to them for $1 a year!

These brave hero’s and many others through the years died so that unamerican individuals could look at something like this and be offended. Heck we might as well raze ARLINGTON National Cemetery while we are at it. Do us all a favor and go find another country to live in that has more freedom and a better quality of life than the USA.
Semper Fi and may God bless America

Those two gentlemen who are "agin" the monument which has stood for ninety=three
Years should take a trip to Washington, D.C. And view Arlington Cemetery....Gosh
They'd have a field day with all those crosses.

You go to Arlington National Cemetery you see crosses everywhere from those that have sacrificed their lives for freedoms that we are privileged to have. So if they tear down this statue that also symbolizes the sacrifice of WW1 soldiers- are they going to tear down every cross at Arlington and other state Veterans cemeteries that are used to symbolize the sacrifices of those that lost their lives? Leave these monuments alone no matter what they are. If we have to see the vaginas and what not around why can’t they ( liberals and millennials) leave history alone???!!!

I have seen many of these cases and I have wondered why they are just about always against the Christian cross. I have seen memorials that contain the Star of David or a Menorah or one of the symbols of Islam. Why do they get to stay and the Christian ones have to go?

I have seen many of these cases and I have wondered why they are just about always against the Christian cross. I have seen memorials that contain the Star of David or a Menorah or one of the symbols of Islam. Why do they get to stay and the Christian ones have to go?

If the cross represents a Geodetic Survey Azimuth Mark as recorded with USGS, then any attempt or damage to the monument is a federal crime.

I don't get it! It's a memorial to WWI veterans, it has nothing to do with religion or the government. If you dislike veterans and religion, then you need to get the he'll out of my country.

There is another solution;
Simply offer to buy the associated land and then it will be private property. Then the Legion would need to support and maintain it. That way the government and anybody that opposes such things will not have much say in the matter. Setup a separate 501 just for this memorial and solicit donations for it's upkeep. Your goal would be to get enough donations to set up the "foundation" and then the tax exempt interest would be used to fund maintenance and any repairs.

The first thing a group does when taking over a country is destroy the the history. (like ISIS does) These actions of statues are the equivalent of burning books. Wake up people! We are losing our country a little piece at a time.
We have freedom OF religion, NOT freedom FROM religion!!!

So they started with Civil War Memorials. Now WWI...what's next....WWII, Korean, Viet Nam, Iwo Jima, etc. etc., etc.???

Yes Audrey, sadly it is ONLY the beginning. Once someone was able to sway enough public opinion to have a certain type of memorial removed, then the end was now in site for all the other representations meant to memorialize the fallen military throughout time.

Seems to me that actually allowing a "symbol" to represent some type of meaning makes that symbol the eventual target of people who are offended with "EVERYTHING"

I'm willing to bet that even if the state cow-towed to the demands of the few people offended by this memorial. Those same people would be outraged at the expense they would incur by the removal or changes made to this memorial.

There is just NO WAY to satisfy everyone. Perhaps we would have been better off letting the Nazis win?

I come from several generations of veterans , thank God they all made it home . If you try to erase history it will repeat it's self . Who's going to do what they did for our freedoms ? Enough already , Love it or leave it GOD Bless America...…..

So why after 93 years the Bladensburg WWI Veterans Memorial has suddenly become an eyesore and has to be destroyed? Makes no sense.

because a new highway was just built and the land its, now owned by govt not private citizens, on now being maintained w tax dollars not private funds. Not that I agree in any way with it being removed, i was just answering your question as to, why now?

That happened in 1961.

See if the state agency who own the property will sell it to the local legion for $1, then volunteers can take care of it since it would be on private property. Then pass out boxes of tissues to catch the liberal tears.

More liberal trash from a bunch of 4F liberal activists that do not understand that there is freedom of religion, not freedom from religion. If not for the God blessed WW1 veterans and WW2 veteran members of the greatest generation we all would be speaking a different language and rendering a different salute;
but that's what liberal U. S. Constitution hating left wants. Same applies to the crap on removal of Civil War memorials, these nut jobs cannot change history. As for WW1 my grandfather took 3 German MG bullets(plus mustard gas) 1 bullet went to his grave with him and for WW2 my dad left part of his skull on Arzew Beach Head, Algiers, North Africa. If scumbags don't respect veterans or religion then get the Hell out of my country. We have been here since 1632 and have fought in every conflict since.

Our government and its law makers should learn that our country is baced on the intent of the law with the letter of the law explaining the theory. If the time has come when the law makers dictate our lives and not us dictating to the law makers we may be in line for another large scale disagreement . I may be 65 and have slowed a bit however I have protected myself by returning fire on my property a couple of times and have gone past being afraid of a dictating government . God protect our country with all beliefs as we are one when it comes to freedom from oppression.

Separation of Church and State rules!

Separation of Church and State? The Government does not have the right or authority to define religion.
There is no definition of religion in the constitution. It merely gives us all the right to worship as we please. The government cannot dictate what or how we do it. The constitution also states that any power not specifically granted to the Federal Government by the constitution belongs to the States. The only way that Congress can change that requires ratification or two thirds of the states.

"Congress shall make no law respecting the establishment of religion..." Now, pray tell, how ACKNOWLEDGMENT of anything can be construed as ESTABLISHMENT? Henry VIII had ESTABLISHED his state religion in England. This cross or any such symbol acknowledges, not establishes, that the USA is primarily a Christian country. If Islam were predominant, we'd have a Crescent! Early settlers from England, virtually all Christians, fled that country because of Henry Vlll's religious persecution. I think is is safe to say that this country was founded on Judeo-Christian values. The first clause of the 1st Amendment seems to confirm that and since the founders mentioned religion at the very beginning of the Bill of Rights I'm guessing that religion was important to them. And...
"... or prohibiting the free exercise thereof" (which means no mandating including abortion insurance coverage, for example!)

Molon Labe - USMC 1973-1977 - Semper Fidelis! May we never forget their sacrifice, and may we always remember those who dishonor their memory and sacrifice, and deal justly with them.

Those who want to rewrite American history face the unfortunate fact that so many Americans have given their lives for the values that now others are at liberty to question. However, rewriting history tends to mean that we have to erase the sacrifice of those who served and died. This is neither right nor prudent in my opinion. Erasing elements of our society that function to bring meaning and cohesion to our society - simply because some members of society take issue with an expression - is fundamentally flawed. Perhaps those who prefer peace to war were to take issue with monuments to fallen soldiers from all of our past wars, police actions, and peace-keeping missions, could a case be made to erase them? Or, would it be better to learn from them while honoring the sacrifices of those who gave their last breath to the promise of what America was in the process of becoming? Tails wagging dogs prove disfunction. Removing monuments in the name of "Separation of Church and State" fails to understand that such a phrase is neither in the Constitution for which so many fought and died to support, and changes the force of what the Constitution actually says to the detriment of all.

If you do not believe in God, than it is not a symbol but art work, I am not a fan of Whorl's work, but would never ask that it be removed. It is only a symbol if you have a belief in it. Those who do not believe in religion this cannot be a symbol because it has to have meaning for it to be a symbol. A cross has many meanings religion is one of them. This cross is a symbol for those fallen in WW I, if you do not believe in God than this is not a symbol but art work. A cross was also used as hate crime by the KKK,I can tell you for a fact, that those cross did not have any religious meaning, other than pure hate. should we than say all crosses have that same meaning? I think not, There has to be some kind of history and meaning behind it to make it a symbol. Once again for nearly 100 years this cross is a symbol for men who died defending the world. Not just this nation. This cross should stand based on the meaning of the symbol and history. (which if a symbol of those defending the world is offending to you. I truly feel sorry for you) not because it is a cross. Unlike the confederate statues which where placed well after the Civil war for the symbol of reminding people of who is in charge and it was used to intimidate. This symbol is to honor those who gave their life for those oppressed.

Dad was with the 111th Sea Bee's on D day he attended service on board before he launched. The cross is a sign of faith and hope needed for most that may die, It has only been recently discarded from the public domain, since the Civil liberality union poured money int its demise, The Cross is not a Church or Religion. Barry Tramantano Served Us Army Air Defence 1969-1970

Those judges should be deported along with the idiots that don't like it

TO HONOR THOSE WHO HAVE SERVED AND THOSE WHO HAVE GIVEN ALL WHEN NEEDED. IT IS NOT ABOUT EACH AND EVERY PERSONS DESIRES TO OBJECT TO THEIR SELFISH WHIMS. IF YOU SERVED AND EARNED YOUR RIGHTS , GOD BLESS YOU AND THOSE WHO HAVE. IF NOT THINK ABOUT THANKING THOSE WHO HAVE PROTECTED THE RIGHTS YOU AND YOURS ENJOY.

leave it where it is.

Where does this nonscence end ? Will all crosses be removed? On our churches ? On our walls ? This forced elimination of all we hold sacret is contrary to our constitution. Their are no atheists in foxholes

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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.