In the

Supreme Court of the United States

THE AMERICAN LEGION, ET AL., PETITIONERS

v.

AMERICAN HUMANIST ASSOCIATION, ET AL., RESPONDENT

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONERS

v.

AMERICAN HUMANIST ASSOCIATION, ET AL., RESPONDENT

BRIEF FOR PETITIONER

STATEMENT OF THE CASE

I. THE PEACE CROSS

The Bladensburg World War I Veterans Memorial, known locally as the "Peace Cross," is a Celtic-styled Latin cross standing on a large pedestal. The American Legion's symbol is displayed at the intersection of the cross's horizontal and vertical arms, and the words ''VALOR'', "ENDURANCE", "COURAGE", and "DEVOTION" are inscribed at its base. On the pedestal is a nine-foot by two-and-a-half-foot bronze plaque, which declares the monument "DEDICATED TO THE HEROES / OF PRINCE GEORGE'S COUNTY, MARYLAND WHO LOST THEIR LIVES IN / THE GREAT WAR FOR THE LIBERTY OF THE WORLD." The plaque lists the names of the 49 local men who died in World War I ("WWI"), identifies the dates of American involvement, and quotes President Woodrow Wilson's request for a declaration of war: "The right is more precious than peace. We shall fight for the things we have always carried nearest our hearts. To such a task we dedicate our lives." Each of these adaptations is proportionate to the size of the 32-foot-tall Peace Cross, and is readily visible to passersby traveling by foot, vehicle, or other means.

The Peace Cross stands in ''Veterans Memorial Park," surrounded by several other privately built monuments to the Nation's conflicts. These memorials include (1) a World War II ("WWII") Honor Scroll dedicated by the American Legion in 1944; (2) a Pearl Harbor memorial; (3) a Korea-Vietnam Veterans memorial; (4) a September 11 memorial garden; (5) a Battle of Bladensburg memorial; and (6) two 38-foot-tall soldier statues, one British and one American, on opposite sides of the bridge just to the west. The park's many memorials-and its location on the site of the infamous Battle of Bladensburg from the War of 1812-have made Bladensburg "the focus of the County's remembrance of its veterans and war dead."

II. THE ORIGINS OF THE PEACE CROSS  

The Peace Cross traces its origins to the immediate aftermath of WWI, when returning service members and the families of the fallen sought to create a monument to honor their sons and comrades. The builders' decision to create a cross-shaped memorial reflects the fact that, during WWI, crosses became a well-recognized symbol of the losses of the war.

A. Crosses Became A Well Recognized Symbol Of The Losses of WWI

World War I was a brutal, industrialized war unlike any before, with millions of casualties. Approximately 87,900 American soldiers were killed in just five months of fighting-more than in both Korea and Vietnam. Around half were buried in overseas battlefield cemeteries, most under temporary wooden crosses, For service-members on the Western Front, the "countless groups of wooden crosses gathered together to mark the site where soldiers died" were a constant presence.

Indeed, as Respondents' expert Dr. Kurt Piehler observed in prior publications, "the Cross became the principal grave marker" during WWI, and "developed into a central symbol of the American overseas cemetery." After the war, Dr. Piehler wrote in 2010, "cross gravestones replaced the widely used wooden crosses that served as temporary grave markers and quickly emerged as a cultural image of the battlefield." Crosses came to symbolize "vast armies of the dead, forever resting on foreign soil," and, as Dr. Piehler has noted, "signified the dreadful nature of war on the Western Front." In fact, the original cover for one of Dr. Piehler's books used an image of crosses and stars in a cemetery to reflect "remembering war the American way."

The cross's resonance as a powerful symbol of the fallen was confirmed in the national debate over how to replace the temporary wooden crosses and Stars of David with permanent grave-markers. Although Congress initially proposed installing marble slabs, many desired to retain the crosses and stars because they had become such a powerful image of the fallen. Congress ultimately agreed, recognizing that the markers had become "wooden symbols," "emblematic of the great sacrifices which the war entailed." A resolution noted the crosses had become "peculiarly and inseparably associated" with the fallen due to widespread imagery in art and poetry. "The crosses on the graves," one witness testified, "symbolize the American sacrifices in France during WWI, and our war literature has impressed this fact very forcibly on the minds of the people."

Reflecting these sentiments, communities throughout America erected cross-shaped memorials to commemorate those lost in WWI. The Peace Cross is itself within 40 miles of four other cross-shaped WWI memorials: the Wayside Cross in Towson, the Victory Cross in Baltimore, and the Argonne Cross and Canadian Cross of Sacrifice in Arlington National Cemetery. In fact, because "for a substantial number of bereaved families at the end of both world wars, there was no grave or grave site to visit, or it was beyond their means to travel long distances to go there," many community memorials took on the character of "surrogate grave sites."

B. The Peace Cross Was Designed To Mirror The WWI Grave-markers

In Prince George's County, Maryland, in 1919, a Memorial Committee, including the mothers of ten fallen service-members, resolved to erect a memorial to the county's fallen heroes. Consistent with the national sentiment, the Committee chose to design the memorial in the shape of a cross. Committee treasurer Mrs. Martin Redman explained the reason in a 1920 letter to U.S. Senator John Walter Smith: "The chief reason I feel so deeply in this matter, my son, Wm. F. Redman, lost his life in France and because of that I feel that our memorial cross is, in a way, his grave stone."

The Committee partnered with the county Good Roads League, whose fundraising letter stressed the project's commemorative focus:

To honor your comrades lost in the War, we are going to dedicate the National Defense Highway, ... and build a massive sacrifice cross at its beginning ... You are to get the names of every person in your community regardless of wealth, nationality, religion, or politics. These names will be wrapped in an American Flag, placed in a bronze chest, and buried in the foundation of the monument.

This was a "strictly voluntary undertaking of private citizens, with a call for everyone to participate, regardless of how small or large the donation," Recalling the traditional patriotic rhetoric of the day, the Committee sought donations through pledge sheets which read:

WE, THE CITIZENS OF MARYLAND, TRUSTING IN GOD, THE SUPREME RULER OF THE UNIVERSE, PLEDGE FAITH IN OUR BROTHERS WHO GAVE THEIR ALL IN THE WORLD WAR TO MAKE THE WORLD SAFE FOR DEMOCRACY. THEIR MORTAL BODIES HAVE TURNED TO DUST, BUT THEIR SPIRIT LIVES TO GUIDE US THROUGH LIFE IN THE WAY OF GODLINESS, JUSTICE, AND LIBERTY. WITH OUR MOTTO, "ONE GOD, ONE COUNTRY, AND ONE FLAG," WE CONTRIBUTE TO THIS MEMORIAL CROSS COMMEMORATING THE MEMORY OF THOSE WHO HAVE NOT DIED IN VAIN.  

The builders broke ground on the Peace Cross and another WWI memorial-the National Defense Highway (modern-day MD-450) connecting Washington with the U.S. Naval Academy-together at the same ceremony on September 28, 1919. By 1922, however, little progress had been made for lack of funds. As a result, the local American Legion post  volunteered to complete the memorial. Post 3 assumed the Committee's contracts and the Town of Bladensburg conveyed the land to Post 3, that the Peace Cross "might be a finished and fitting tribute to those of our boys who gave their lives in the World War."

The Legion dedicated the Peace Cross in a patriotic ceremony on July 12, 1925. Representative Stephen Gambrill delivered the keynote. Clergy from local Hyattsville churches gave an invocation and benediction. The Army Music School band provided music, and representatives from the War Mothers and the Legion also spoke.

III. THE COMMISSION'S OWNERSHIP OF THE MEMORIAL

Although the Peace Cross was originally built at the terminus of the National Defense Highway, over time the roads grew busier and expanded around the memorial such that the Peace Cross ended up in the median of a traffic roundabout. Recognizing potential traffic safety hazards from private ownership of the median, in 1935 the state legislature authorized the Maryland Roads Commission to acquire property rights around the Peace Cross. Eventually, after a series of land transfers in the vicinity of the Peace Cross, the Legion conveyed the land and Peace Cross to the Maryland-National Capital Park and Planning Commission in 1961, but reserved an easement to conduct veterans' commemorative events on the property, and a reversionary right to intervene and care for the memorial should the Commission ever be unable to do so.

Today, the Commission owns and controls the property, subject to the Legion's reserved interests. The Commission provides routine grounds-keeping, power for the lighting, and occasional repairs every few decades. In total, the Commission has spent $117,000 on upkeep over the six decades it has owned the Memorial, and has budgeted an additional $100,000 for needed repairs.

IV. PUBLIC USE AND RECEPTION OF THE MEMORIAL

From its beginning, the community has regarded the Peace Cross only as a commemorative monument. Indeed, accounts from every decade of its existence uniformly refer to it as a memorial to the county's WWI dead.

Similarly, the Peace Cross has only ever been used by the community as a commemorative monument. Each year, the Legion holds a commemorative event at the Peace Cross on Veterans Day, and a Memorial Day event across the street between the WWII Honor Scroll and the Korea-Vietnam Veterans' Memorial. Those events typically include a presentation of the colors; the national anthem; an invocation by a Legion representative; a welcome message from public officials; remarks by a regional Legion official; laying of floral wreaths; taps; a benediction by a local Legion representative; and retirement of the colors.

In stark contrast, Respondents' expert could not identify any religious event at the Peace Cross in its nine-decade history, other than a 1931 event noted in the Washington Post. That article mentions an out-of-town preacher planned to hold a series of three Sunday services at the Peace Cross in August 1931. Nothing in the record, however, confirms whether the services occurred. And there is no evidence that any member of the Bladensburg community has used the Peace Cross for a religious event.

V. THE PROCEEDINGS BELOW

In 2012, the American Humanist Association lodged the first and only known complaint against the Peace Cross, alleging that its presence on public land violates the Establishment Clause. Respondents commenced this lawsuit against the Commission in 2014, and the Legion petitioners intervened as defendants to protect their reserved interests in the memorial. The District Court ruled the memorial constitutional on cross-motions for summary judgment.

In a 2-1 decision, the Fourth Circuit reversed. The majority acknowledged the government had articulated "legitimate secular purposes for displaying and maintaining the Peace Cross," which contained "secular elements." However, because "the Latin cross is the 'preeminent symbol of Christianity," and "for thousands of years ... has represented Christianity," the majority held crosses possess an "inherent religious meaning" that "easily overwhelmed" the government's secular purposes and the Peace Cross's history and thus had the effect of "endorsing" Christianity. The majority also held the government had excessively entangled itself with religion by spending funds to maintain the memorial.

Chief Judge Gregory dissented, arguing the majority had adopted a "per se finding  that all large crosses are unconstitutional despite any amount of secular history and context."According to Chief Judge Gregory, the panel had "subordinated the Memorial's secular history and elements while focusing on the obviously religious nature of Latin crosses themselves" and "construct ed a reasonable observer who ignores certain elements of the Memorial" because they are not immediately obvious to a passing motorist. He also observed that excessive entanglement requires some engagement with religious institutions or promotion of doctrine, not "merely maintaining a monument within a state park and a median in between intersecting highways that must be well lit for public safety reasons."

The Fourth Circuit denied en bane review by an 8- 6 vote, over dissents by Chief Judge Gregory, Judge Wilkinson, and Judge Niemeyer. Judge Niemeyer noted the panel's decision "puts at risk hundreds, and perhaps thousands, of similar monuments," including "similarly sized monuments incorporating crosses in the Arlington National Cemetery." Judge Wynn, a member of the panel, wrote separately to defend the panel's opinion because "nothing in the First Amendment empowers the judiciary to conclude that the freestanding Latin cross has been divested of its predominantly sectarian meaning" in global history.

This Court granted certiorari on November 2, 2018.

SUMMARY OF ARGUMENT

The Commission's display and maintenance of the Peace Cross does not violate the Establishment Clause because it does not coerce belief in, observance of, or financial support for religion, and would survive any other test applied by this Court.

I. The Court should clarify that coercion, not endorsement, is the proper standard for Establishment Clause claims.

I.A. First, no clear standard governs this case. Although the Court of Appeals applied the so-called "endorsement test" derived from this Court's decisions in Lemon v. Kurtzman (1970), and County of Allegheny v. ACLU, Greater Pittsburgh Chapter (1989), the continuing viability of that test is uncertain. In particular, while upholding sectarian legislative prayer in Town of Greece v. Galloway, this Court made clear it would reject any "test" that does not "accord with history and faithfully reflect the understanding of the Founding Fathers." And there is no principled basis for concluding that one form of government speech-prayer-is constitutional unless it is coercive while subjecting another form of government speech-passive displays-to a different standard. When considered in light of this Court's inconsistent application of the endorsement test and the substantial criticism of the test from the Justices, other courts, and commentators, it is no surprise this Court must decide whether, as Town of Greece indicates, the presence of coercion is a necessary element for an Establishment Clause claim, or whether, as Allegheny indicated, government "endorsement" of religion is sufficient.

I.B. Second, the text and history of the First Amendment show the Establishment Clause prohibits religious coercion, not endorsement. The First Amendment is designed to protect religious liberty against government interference-both the positive right to believe and practice according to one's convictions (through the Free Exercise Clause), and the negative right against being compelled to believe or practice contrary to one's convictions (through the Establishment Clause). The history of the First Amendment-which is uniquely relevant when interpreting the Religion Clauses-confirms this interpretation. From the characteristics of the existing establishments in England and several Colonies, and the disestablishment efforts in the States, we know that the use of government power to compel religious belief, practice, or financial support was the essence of "establishment." And, conversely, we know from the actions of the Framers after adoption of the First Amendment that government actions merely endorsing religion posed no Establishment Clause concern. Thus, each element of history points in the same direction: Coercion, not endorsement, is the standard for an Establishment Clause claim.

I.C. In addition, unlike the coercion standard, the endorsement test does not provide a workable rule of decision. First, the endorsement test is incapable of consistent application and leads to results out of step with history and common sense. Indeed, the endorsement test would (if applied consistently) not only invalidate many practices of the Framers, it would also prohibit many practices approved by this Court or consistent with national traditions. Second, by making a constitutional claim out of feelings of offense and exclusion, the endorsement test grants a heckler's veto over speech supportive of religion that does not apply to any other form of government speech. Restricting only religious speech singles out religious speech for discriminatory treatment and burdens that speech based on its content and viewpoint-thus creating severe tension with both the Free Speech and Free Exercise Clauses. Third, evaluating government action from the perspective of a hyper-knowledgeable "reasonable observer" defeats the test's own goal of protecting plaintiffs from feelings of offense and exclusion, leads to confusion about what information a reasonable observer knows, and often turns on the misperceptions of the hypothetical observer.

Similarly, the fact-bound, multi-factor approach of the concurrence in Van Orden v. Perry (2005), does not solve, and in many ways exacerbates, the problems inherent in the endorsement test. The concurrence itself disclaimed it was setting out a new test. And while the factors that proved important to the concurrence adequately resolved Van Orden, it is unclear these factors will be equally important in other factual contexts, or that these are the only factors a court should consider.

II.        The Peace Cross does not violate the Establishment Clause because it does not coerce religious belief, practice, or financial support, whether through compelled profession or observance, excessive proselytization, or other historically grounded means. As an initial matter, passive displays like the Peace Cross will almost never be coercive because, even more obviously than with legislative prayer and other government speech, a government's use of religious imagery in a passive display does not compel "citizens to support or participate in any religion or its exercise." Thus, consistent with the original meaning of the Establishment Clause, this Court should clarify that passive displays with religious imagery-like the Peace Cross-will not constitute an establishment of religion except in extraordinary circumstances. Here, far from extraordinary circumstances, a memorial honoring war dead is precisely where one would expect to encounter religious imagery in a government display.

IlI. Finally, if the Court applies the endorsement or other tests, the Peace Cross passes scrutiny. The Peace Cross is not materially distinguishable from the Ten Commandments display upheld in Van Orden, which also was privately built, sat among other memorials, and stood unchallenged for decades. Similarly, because the Peace Cross was built to be a war memorial, has only ever been a war memorial, has only ever been regarded by the community as a war memorial, and is only on government land because of traffic safety concerns arising decades after it was built, a properly informed reasonable observer should conclude the message of the Peace Cross is one of commemoration, not endorsement. Lastly, if the Lemon/endorsement test applies, there is no plausible argument that merely providing routine maintenance and grounds-keeping for a war memorial that happens to include religious imagery unconstitutionally "entangles" government with religion.

CONCLUSION

For the foregoing reasons, the Court should reverse the judgment of the Fourth Circuit.