Late last year, the U.S. Court of Appeals for the Fourth Circuit ruled 2-1 that a giant Christian cross in Prince George’s County, Maryland was unconstitutional.
The Christian groups representing the other side then asked the entire Fourth Circuit to reconsider the case. Today, the Court ruled 8-6 against rehearing the case, which means the earlier ruling stands.
It’s another loss for the Christian Right and another victory for church/state separation.
By way of background, this case involved a World War I memorial known as “Peace Cross.” It’s a 40-foot Christian symbol on public property, maintained by the Maryland National Capital Park and Planning Commission, that’s been up since 1925. The American Humanist Association’s Appignani Humanist Legal Center began urging the local government to take it down in 2012.
When that didn’t happen, the AHA filed a lawsuit in 2014. The subsequent legal battle for the AHA involved a setback at the district level, pushback from conservatives, and an appeal that was opposed by 26 attorneys general from across the nation.
But when the oral arguments took place in December of 2016, there was reason to be optimistic. Not only did two of the three judges seem to agree with AHA attorney Monica Miller, the other side argued (not very convincingly) that a giant Christian cross wasn’t a religious symbol.
One of the judges, James A. Wynn Jr., even appeared to laugh at that argument, asking the government attorney point-blank how any reasonable person would ever look at the cross and think: That represents World War I and totally has nothing to do with Christianity!
Last October, those judges ruled just as church/state separation advocates had hoped. The judges were incredibly blunt, too, even saying at one point that “the sectarian elements easily overwhelm the secular ones.”
… The district court determined that such government action does not run afoul of the Establishment Clause because the cross has a secular purpose, it neither advances nor inhibits religion, and it does not have the primary effect of endorsing religion.
We disagree. The monument here has the primary effect of endorsing religion and excessively entangles the government in religion. The Latin cross is the core symbol of Christianity. And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds. Therefore, we hold that the purported war memorial breaches the “wall of separation between Church and State.”
On what grounds was this justified? Well, take a look at how judges discussed the “secular” aspects of this giant Christian cross:
Even beyond that, said the judges, “the Cross is not located in an area where one could easily park, walk to the Cross, and examine the plaque.”
… one side of the base contains a two-foot tall, nine-foot wide plaque listing the names of the 49 soldiers from Prince George’s County whom the Cross memorializes, followed by a quote by President Woodrow Wilson. However, the plaque is located on only one side of the base, which bushes have historically obscured. Moreover, the plaque is badly weathered, rendering it largely illegible to passing motorists.
A small sign titled “Star-Spangled Banner National Historical Trail” is located on a walking path approximately 600 feet north of the Cross. This small sign — which, like the plaque at the base of the Cross, is not readily visible from the highway — serves as the only formal marker identifying the area as a memorial park by stating, “This crossroads has become a place for communities to commemorate their residents in service and in death.”
The point is that a reasonable person who came across the cross would assume it’s a monument to Christianity. It’s no different, the judges said, from a stand-alone Ten Commandments monument outside a courthouse, which the Supreme Court has already said is illegal.
… a reasonable observer would know that the Cross is dedicated to 49 World War I veterans and that veteran services occur at the Cross. But, more importantly, a reasonable observer would also know that the private organizers pledged devotion to faith in God, and that same observer knows that Christian-only religious activities have taken place at the Cross. No party has come forward with any evidence to the contrary… Further, the reasonable observer would know that a Latin cross generally represents Christianity. These factors collectively weigh in favor of concluding that the Cross endorses Christianity — not only above all other faiths, but also to their exclusion.
(The judges carefully noted that their analysis didn’t necessarily apply to other veterans’ memorials with Christian symbols. Their ruling only applied to this case.)
They also said there was “excessive entanglement” between the government and religion in this case, since the Commission “owns and maintains the Cross.”
And today, the full Appeals Court said there was no reason to revisit that decision. One of the judges even wrote about the dangers of revisiting this case and ruling in the other direction:
To allow this Court to circumscribe the Bladensburg Cross’s meaning and power, as the Commission and its amici request, would empower this Court to diminish the Latin cross’s many years of accrued religious symbolism, and thereby amount to the state degradation of religion that the Framers feared and sought to proscribe. Indeed, were this Court to accept that the Latin cross’s predominantly sectarian meaning could be overcome by a plaque, a small secular symbol, and four engraved words, as the Commission maintains, we would necessarily grant the government — and the judiciary, in particular — broad latitude to define and shape religious belief and meaning.
In short: This is a Christian symbol, and for us to say it’s a legal memorial would actually hurt religion.
See? They’re trying to help the Christians! And they’re doing that by insisting that a giant freaking cross is a Christian symbol. They’re helping the Christians by handing victory to the other side. It’s hilarious and brilliant.
What happens now? It’s possible the Maryland National Capital Park and Planning Commission will appeal to the Supreme Court with the support of religious groups. But that’s an expensive request and there’s a slim chance the Court will agree to rehear the case when the situation is rather simple.
It’s time for the cross to come down. If the County wants to recognize veterans, they should have a memorial that does exactly that, without pretending like non-Christian soldiers never existed. The AHA isn’t anti-military, anti-veteran, or anti-Christian. They’re not ungrateful for the sacrifices made by those who gave their lives fighting for this country. They just want the government to play by the rules and honor everybody.
Promoting Jesus isn’t the way to do that.
The American Humanist Association celebrated their repeat victory:
“This is a big win not only for separation of church and state, but for all non-Christian veterans who are excluded from an enormous Christian cross war memorial,” said Monica Miller, senior counsel from the AHA’s Appignani Humanist Legal Center. “The court correctly upheld its previous ruling that the cross unconstitutionally endorses Christianity and favors Christian soldiers to exclusion of all others.”
“Government war memorials should respect all veterans, not just those from one religious group,” said Roy Speckhardt, AHA executive director. “Religious neutrality is important in a pluralistic society like ours.”
(Large portions of this article were published earlier)