In the

Supreme Court of the United States










A. Factual Background

The government is prominently displaying a 40- foot-tall concrete Latin cross-symbolic of "Calvary, as described in the Bible"-at the entrance to the Town of Bladensburg in the center of one of the busiest inter­sections in Prince George's County, Maryland. The Cross and the me­dian are owned and maintained exclusively by the Maryland-National Capital Park and Planning Com­mission ("Commission"), a bi-county agency funded by Prince George's County and Montgomery County.

1. The origins of Bladensburg's Latin Cross

In January of 1919, residents of Prince George's County chose a secular doughboy as the symbol to com­memorate those who perished in World War I. The memorial was unveiled in 1919 at the county courthouse, bearing the same names as those that would later appear on the Bladensburg Cross.

Later that same year, apparently dissatisfied with this secular memorial, the Good Roads League ob­tained the consent of the Commissioners of the Town of Bladensburg (the "Town") to erect a large "Calvary Cross" on Town property.

The plan was to erect a "mammoth cross, a like­ness of the Cross of Calvary, as described in the Bible." "Calvary" refers to the "proper name of the place where Christ was crucified." The committee overseeing the ef­fort was aptly named the "Calvary Cross Memorial" committee.

John Earley, who had recently designed a critically acclaimed Catholic shrine, was chosen as the Cross's designer. The Committee then proceeded to fundraise for the edifice asking donors to sign a pledge stating that they "trust[ed] in God, the Supreme Ruler of the universe," and pledged to "one god, one country and one flag.''

The Town "soon picked the perfect spot for their memorial, the former Bladensburg Port landing-the center of the town's economic and social life for much of the nineteenth century." "Town lead­ers chose to locate the monument on a prominent piece of land in what was then the center of town" as the land was then "owned by the Town."

At the groundbreaking ceremony, held on Septem­ber 28, 1919, the Secretary of the Navy "was the pri­mary speaker" and other "speeches were given by local officials.''

By 1922, the Calvary Cross was erected in its cru­ciform but unfinished. The committee failed to raise enough funds and thus abandoned their efforts. This was "attributed to the keen competition" the Cross faced with the secular memorial slated for, and then erected at, the courthouse-which yielded a "far more successful" fundraising campaign. "[M]any citizens, aware the county already had a war memorial, deemed unnecessary to support further at­tempts to complete the Peace Cross."

Due to its prominent placement on the main Washington - Baltimore thoroughfare, the unfinished Cross ''became an eye-sore to those who passed every­day." So on February 25, 1922, the Town "re­solved" to convey to the American Legion ("Legion") Post 3 the "care" of the land on which "the cross now stands" for the "completion" of the Cross. The land, "together with the Cross and its surroundings," would revert to the Town if Post 3 disbanded.

The Legion's first fundraising drive for the Cross in April 1922 featured Christian prayers. In May 1922, the Legion held memorial services at the site, where a Christian chaplain led prayer and those in attendance sang the Christian hymn, "Nearer My God to Thee."

The Cross was dedicated on July 12, 1925, at a public ceremony led by government officials and Chris­tian clergy. The keynote speaker, Maryland Representative Stephen Gambrill, reaffirmed this Cross's distinctly Christian meaning, declaring: "by the token of this cross, symbolic of Cal­vary, let us keep fresh the memory of our boys who died for a righteous cause."

A Roman Catholic priest and a Baptist minister delivered Christian prayers. Other "local officials and figures delivered remarks." "No rabbi or Jewish leader took part in the dedication of the [Bladensburg] Cross despite the close proximity" to "substantial Jewish communities."

Immediately after its dedication, the Cross be­came the site for "rites," "exercises," "services" and "marches," many of which included prayers. On July 26, 1925, robed Klansmen marched from "the peace cross at Bladensburg to the fiery cross at Lanham." In May 1928, "exercises at the foot of the Memorial Cross" included prayers by Rev. Carey of St. Jerome's Catholic Church and Rev. Robertson of the First Bap­tist Church. In May 1929, memorial "exer­cises" at the Cross included prayers delivered by the Rector of St. Luke's Episcopal Parish. Frank Mountford, lauded as a leading evangelist, held three "Sunday services" at the Cross in August 1931.

2. The historical context in which the Bladensburg Cross was erected

As expert witness Dr. Kurt Piehler testified, for "most Jews, especially observant Jews, it would be sur­prising if they did not view the Bladensburg Peace Cross as an overtly hostile Christian symbol."

When the Cross was erected in 1925, it was a crime in Maryland "to blaspheme or curse God or write or utter profane words about our Saviour Jesus Christ or of or concerning the Trinity or any of the persons thereof."

Likewise, until this Court intervened in 1961, Maryland's test oath barred from office all "[c]itizens unwilling to avow a belief in Christianity, or being Jews, were unwilling to subscribe to a belief in a here­after." Thus, until 1961 "Jews, unwilling to submit or subscribe to the test, deists (like Thomas Jefferson), atheists, Pan­theists, Moslems, Buddhists, and Brahmins" were ex­cluded from office.

Throughout the First World War, the Latin cross "reflected a strain of exclusion directed against a small, but growing Jewish population." As a former commander wrote, Jewish war veterans united to fight a "tidal-wave" of "poison­ous propaganda of passion and prejudice, of Religious bigotry, intolerance, and race hatred." "The most baseless anti-Semitic utterances portrayed Jews" as "money lovers who would never risk life and limb for country."

"GENTILES ONLY" would be the sign Jews confronted at popular vacation spots near Annapolis. Builders used restrictive covenants to dissuade Jews from buying property in Spring Valley and parts of Chevy Chase.

In Prince George's County in the 1920s, the Latin cross was "appropriated by the Ku Klux Klan as a sec­tarian symbol designed to intimidate Jews, Roman Catholics, and African Americans."

In 1924, 400 robed Klansmen conducted a full "Ku Klux Klan" funeral less than a mile away from the nearly-finished Cross and "200 persons other than Klansmen stayed for the ceremonies." In 1925, Klansmen marched from "the peace cross at Bladensburg to the fiery cross at Lanham." That same year, 100,000 robed Klansmen marched through Washington, D.C. Cross burnings were common in nearby Mt. Rainier.

"A number of Klansmen were members of the American Legion during this era." In some "communities, the Klan and Legion memberships were one in the same."

The Legion put on "the greatest minstrel show ever held in Hyattsville" to benefit "the Memorial Cross." The Legion also fundraised with carnival games like "Coon in Barrel" and "Japanese Board."

"During World War I, attempts to use religious iconography were seen as highly controversial." The Jewish Welfare Board protested the use of the Latin cross on overseas chapels, the Tomb of the Un­known Soldier, as the symbol on chaplain uniforms (in­cluding for Rabbis), and most importantly, as the symbol over Jewish graves.

Their pleas met with some success. In overseas cemeteries, the government agreed to put Stars of David over Jewish graves. The Legion quotes Dr. Piehler's statement that" 'the Cross became the principal grave marker' during WWI," but omits the rest of the sentence: "with a Star of David grave­stone used for Jewish soldiers." Cem­eteries in the United States adopted the uniform slab marker. And the ''vast major­ity of World War I memorials do not make use of reli­gious iconography in their design." The "free standing Latin Cross in Bladensburg is distinctive." The "most widely used World War I monument erected in most communities was the doughboy statue."

3. The Cross's physical features and set­ting

The Bladensburg Cross is an "imposing 40-foot, 16-ton" concrete Latin cross. The Cross is the Town's "most prominent symbol. A councilwoman boasted in 2001: "The [Cross] has always denoted Bladensburg."

The Cross towers over a small traffic island that serves as a median between three major commercial! commuter roadways-"a strategic position at the point where the Washington-Baltimore Boulevard joins the Defense Highway leading from Washington to Annap­olis." It is "one of the county's busiest intersections", traversed by "thousands" of mo­torists on a daily basis. The Cross is the only monument on the island.

There are no other religious symbols in sight. The Cross itself has no secular features aside from a small "U.S." star in the center. Petitioners assert this is the "American Le­gion" symbol, yet the Commission's records refer to it as a generic "gold star bearing the letters 'U.S.' in red in the center." The Legion is not named anywhere on the Cross or its base.

There "are no specific pedestrian rights-of-way" to the median and no designated parking.

Affixed to one side of the Cross's base is a 2-foot-­tall plaque listing men who died in World War I. The plaque is usually obscured by bushes. Even when cleared, the plaque cannot be read by passing motor­ists. One local didn't even know her uncle's name was on the plaque until this litigation."

The Cross stood as the only monument in the area for over 20 years. In the 1940s, the government approved the placement of a World War II scroll-approximately one-third the Cross's size-in a separate area across the highway. This was the only other monument in the area for 40 years, until the even smaller (6-foot-tall) Korea-Vi­etnam memorial was erected near the scroll in 1983. It would be another twenty years until the fourth memorial (for 9/11) was added (by the county) to the separate parcel with the scroll, but it is a walkway, not a monument. After litigation commenced, in 2014, the government in­stalled a War of 1812 monument about half a mile away from the Cross and about one-half the Cross's size. And re­cently, the Commission installed two soldier cut-outs (approximately 5-feet-tall) situated atop poles, but only one is visible from the Cross and it is on the sep­arate parcel with the scroll.

A 2015 Commission report conceded that the Cross is the "centerpiece" and is "clearly towering over the space."

4. The Commission's ownership of the Cross

Petitioners mislead the Court when they claim that the Commission owns the "Cross only because of roadway expansion and traffic safety concerns." The Town de­liberately chose to showcase the Cross by approving its erection on prominent Town-owned property. While Petitioners claim that the Cross just "ended up in the median of a traffic rounda­bout", a 1919 Washington Times article confirms that it was the Town's intent to have the Cross placed in a median: "The cross will be erected at the intersection of the Washington and Baltimore boulevard and the new National Defense Highway, now being constructed on the way to Annapolis. This triangle park, is an admirable site."

The Cross stood unfinished, but in cruciform, before the Town deeded it to the Legion for its "perpetual care" in 1922. Before the Post would disband, in 1935, the governor asked the State Roads Commission to "prevent the 'desecration' of the Memorial Cross at Bladensburg by proposed erection of a service station on the property." A senator suggested that condemning the property would pre­vent such 'desecration. '

And in 1960, the Commission acquired the Cross from the Roads Commission for the purposes of "the future repair and maintenance of the monument." Thus, the Commission owns the land not in spite of the Cross, but because of it. It is unclear if the Cross's parcel was ever needed by the Roads Commis­sion. But it is clear that when the Com­mission acquired the Cross, it was not for traffic and safety concerns. Furthermore, any claim that the Com­mission's interest is limited to ensuring the public's safety cannot be squared with the Commission's choice to "rededicate" the Cross as a government war memo­rial, infra.

5. The Commission's 1985 Renovation and Rededication of the Cross to all veterans and Town-sponsored events with Chris­tian clergy

In 1985, the Commission spent $100,000 of county taxpayer funds to renovate the Cross.

After the renovation, on November 11, 1985, the Commission, together with the Town, held an elabo­rate "Rededication" ceremony to rededicate the Cross to "all veterans."

The Commission invited Father Chimiak of St. Matthias Catholic Church to deliver the prayers at the ceremony and later thanked him "for his contributions to our programs" asserting that it "trust[ed] we may assimilate this relationship again. Over 400 attended the rededication.

Since 1960, the Town has embraced the Cross as its own (it was, after all, the Town's to begin with). 

In addition to co-sponsoring the rededication, on July 12, 1975, the Town participated in the Cross's "50th Anniversary." The Rector of St. Luke's Episcopal Church delivered the opening prayer and the featured speaker was a Christian chaplain, who delivered the closing prayer.

On July 4, 1984, the Town hosted an "Independ­ence Day" ceremony featuring two prayers by Father Chimiak. The Town continued to host sim­ilar July celebrations throughout the 1980s and 1990s.

The Town also co-sponsors annual veterans ser­vices at the Cross with the Legion and those services regularly include prayers by lay and ordained Chris­tians. "Nothing in the record indicates that any of these services represented any faith other than Chris­tianity."

Moreover, every ceremony held for the Cross-its fundraising drive, dedication, "50th anniversary," and rededication-included prayers by Christians.

6. 2008-present: A crumbling “eyesore” and safety hazard

For the first 15 years of the Commission's owner­ship, the Cross was a low priority. A 1984 article re­ported that this "imposing 40-foot, 16-ton monument" was "deteriorating," "neglect[ed]," falling apart, and posing a hazard to "children and adults."

After the 1985 $100,000 renovation, the Commis­sion spent $17,000 on routine maintenance. But the commercial and traffic pollutants and a "complex array of [other] vari­able stresses" rendered these efforts futile. In 2008, the Commission set aside $100,000 for another substantial renovation project because the Cross was "rapidly deteriorating" with large chunks falling off.

In 2009, the Commission reported: "There are two cracks that are getting worse which potentially will cause a face of the [Bladensburg] Cross to fall off."

A 2010 Commission report referred to the Cross as a "public eyesore." The report warned that re­pairs could easily "fail" and even "accelerate damage to the monument." In 2010, the Commission sought Requests for Proposals, but none were within budget so it cancelled the project.

When the Commission received Respondents' cease-and-desist letter in 2012, it didn't hesitate to "de­lay the restoration project."

In 2012, a Commission official proclaimed: ''Wow. Looks like another big chunk fell off it, so it may come down on its own!!"

In November 2013, another official mused: "At what point does one stop making repairs, and consider whether it makes more sense to start from scratch or not ... ?" The Commission's designee testified in March 2015: "As a matter of fact, the Peace Cross is coming down now."

These internal conversations starkly contrast with the Commission's public statement that the Fourth Circuit's "decision will necessitate an act of shocking disrespect."

The Commission was in no hurry to recognize the Cross's supposed ''historic significance" either. The idea to have the Cross listed in the National Register of Historic Places was the brainchild of a private citizen. And she proposed it only because she thought this honorific listing would thwart this litigation.

7. The Latin cross and its exclusively Christian meaning

No "symbol [is] more closely associated with a re­ligion than the cross is with Christianity." The Latin cross has been the preeminent symbol of Christianity for almost 2,000 years.

The Latin cross is not embraced by non-Christians or used by them as a symbol of death or sacrifice. Some faiths even view it as a symbol of their religious oppression.

Leading non-Christian veterans organizations, representing a myriad of faith groups including "Jew­ish, Hindu, Sikh, Buddhist, Native American spiritual­ist," as well as Muslim and Atheist, filed statements in the District Court attesting to the fact that the mili­tary service of non-Christian veterans "is excluded and disrespected when a Christian cross is presented as a public memorial."

The U.S. Department of Veterans Affairs currently offers 71 diverse symbols for placement on rectangular headstones, including symbols for Humanists, Athe­ists, Sikhs, Baha'is, Wiccans, Buddhists, Native Amer­icans, Mormons, and Shinto, among numerous other faiths that do not embrace the Latin cross as a symbol of their death and sacrifice.

Procedural History

Three local Humanist residents and the American Humanist Association commenced this lawsuit in 2014. Plaintiffs have each regularly encoun­tered the Cross as residents and two of them cannot avoid the Cross in the course of their ordinary routines. Plaintiffs do not wish to see the Cross torn down; they simply want it removed to private property or modified into a non-religious memorial (such as a slab or obelisk).

In November 2015, the District Court granted summary judgment to Petitioners. In Oc­tober 2017, the Fourth Circuit reversed and remanded without "presuppos[ing] any particular result." Instead, the panel directed the Dis­trict Court "to explore alternative arrangements that would not offend the Constitution."

In reaching its holding that the Cross violates the Establishment Clause, the panel conducted a "detailed factual analysis of the Cross, including its meaning, history, and secularizing elements." It noted that the "Cross is by far the most prominent monument in the area, conspicuously displayed at a busy intersection, standing four stories tall, and over­shadowing the other monuments" off to the other side of the road. And unlike in cemeteries such as Arlington, it observed, there "are no other religious symbols present [here] ... Christianity is singularly ­and overwhelmingly-represented." Thus, the Commission's monument "endorses Christianity­ not only above all other faiths, but also to their exclu­sion."

Judge Gregory concurred on standing and on the applicability of the test enshrined in Lemon v. Kurtzman, but faulted the majority for focusing too heavily upon the "reli­gious component" of the 40-foot-tall Latin cross.

The Fourth Circuit denied rehearing en banco. Judge Wynn concurred, reiterating that, "to accept the Commission's assertion that the Latin cross erected at the Bladensburg intersection does not convey a predominantly sectarian message would prohibit the ability of those who raised the symbol to prominence to continue to safeguard and define its primary meaning."



I. The central principle of the Establishment Clause is that the government cannot align itself with a single religion.

LA. Although Justices have disagreed upon whether and to what extent the Establishment Clause prohibits the government from favoring religion over non-religion, there is no disagreement that the Clause means, at the very least, that government may not demonstrate a preference for one religion over other re­ligions.

The Court has been unanimous that government­ sponsored endorsement of religion is unconstitutional when the endorsement is sectarian, and this mandate is absolute, even when no coercion is present and the practice is longstanding.

LA.1. Every Member of the Court to consider the question has agreed that a prominent sectarian government display violates the Establishment Clause. Every Justice in County of Allegheny v. ACLU joined an opinion citing a promi­nent Latin cross as an archetypal and "obvious" Estab­lishment Clause violation. Every Justice in Capitol Square Review & Advisory Board v. Pinette agreed that giving preferential access to a Latin cross on government property would violate the Establishment Clause. Every Justice in McCreary County v. ACLU agreed that a solo or prominent government display of a sectarian ver­sion of the Ten Commandments would violate the Es­tablishment Clause. And in Salazar v. Buono, the plurality reaffirmed what was said by Justice Kennedy in Allegheny, that the permanent erection of a Latin cross on conspicuous government property violates the Establishment Clause. Justice Alito expressed no doubt, moreover, that the Establish­ment Clause would forbid an official World War I cross on the National Mall.

LA.2. Justices of this Court have been unani­mous in recognizing the Latin cross as the preeminent symbol of Christianity. The Circuits have likewise been "masters of the obvious" on this point, and have uni­formly found freestanding government cross monu­ments unconstitutional on the grounds that they exalt Christianity.

Conceived as a mammoth "Cross of Calvary, as described in the Bible" and formally pro­nounced as a Cross "symbolic of Calvary" by the state official at the Cross's 1925 dedication ceremony, this 40-foot-tall Latin cross is without question, a Christian symbol. Petitioners ask the Court to overlook that re­ality. They claim that the monument is "merely" "shaped like a cross," as if that were a coincidence; and they claim that the Cross is a "secular" "symbol of the war" rather than a Christian symbol. That distortion should be rejected, not only because it amounts to legal chicanery, but also because it works the very kind of harm to religion that motivated the Establishment Clause's passage.

LB.1. When the government prominently dis­plays a large Latin cross as a war memorial, it does more than just align the state with Christianity; it also callously discriminates against patriotic soldiers who are not Christian. Contrary to the Commission's argu­ment that the Latin cross has "a significant secular meaning" as a symbol for "the fallen," "irrespective of their religion", Jews, Humanists, Muslims, Atheists, Buddhists, Unitarians, and others have made it clear, in this case and in others, that a Latin cross war memorial signifies that their sacrifices are unworthy of mention.

The Circuits are in complete agreement that the Latin cross: (1) transcends mere commemoration and promotes the Christian faith alone; (2) does not possess an ancillary meaning as a secular war memorial; (3) is not a generic symbol of death and sacrifice; and (4) sends a strong message of exclusion when promi­nently displayed by the government to honor veterans. Every Circuit to consider the constitutionality of a government memorial cross-the Fourth, Seventh, Ninth, and Tenth-held the cross at issue unconstitu­tional.

LB.2. In Buono, the plurality observed in dicta that the Latin cross is a common headstone in overseas cemeteries. Government defend­ants have since cited that observation to argue that the Latin cross, when used as a war memorial, is not a Christian symbol, or even a religious symbol, but merely a benign secular symbol of war that represents Jews, Atheists, and Muslims alike. But Justice Alito went out of his way to acknowledge that over 3,500 Jewish soldiers died in World War I and their graves are marked not by crosses but by Stars of David. Every Circuit that has addressed the issue since Buono has also found a clear distinction between an individual Christian headstone and a large government­ sponsored war memorial cross.

The Latin cross in this case, moreover, does not evoke, nor was it intended to evoke, a small plain white cross in a foreign battlefield. Instead, the symbol was chosen to evoke "the Cross of Calvary, as described in the Bible."  

LB.3. If the government prevails, it will be a Pyr­rhic victory indeed, at least for devout Christians. Al­lowing the government to recast the Latin cross as a benign secular symbol of war denigrates the religion that it symbolizes.

LC. Every relevant contextual factor that this Court has previously considered affirms that this Cross dramatically conveys a message of governmen­tal support for Christianity in violation of the Estab­lishment Clause. The 4-story "Calvary Cross" was erected with the Town's blessing on a prom­inent parcel of Town-owned land. Today it is owned, extensively funded, actively used, promoted, and prom­inently displayed by the government. It stands alone on the traffic island, dwarfing its surroundings. The Cross is not displayed as an exhibit in a museum, on private property, or in another location that might de­tract from the government's having placed its impri­matur behind it. Indeed, rather than disassociate from the Cross, the Commission and the Town held an elab­orate "Rededication" ceremony to publicly sanctify the Cross as a government war memorial. The length of time this Cross has stood as a permanent government tribute to Christian soldiers and Christian soldiers alone has served to intensify the exclusion felt by reli­gious minorities.

ILA. Because the case can be decided on uncon­tested Establishment Clause principles, Respondents agree with the Commission that the Court need not take up the Legion's invitation to upend decades of precedent by reconsidering the test enshrined in Lemon.

But Respondents disagree that Town of Greece v. Galloway furnishes an "inde­pendently sufficient ground" to uphold a massive Latin cross on the basis of ''history and traditions." Our constitutional tradition, "from the Dec­laration of Independence" down to the present, has, as Justice Scalia put it: "ruled out of order government­ sponsored endorsement of religion where the en­dorsement is sectarian  for example, the divinity of Christ."

"History and traditions" has never conferred an in­dependent basis to uphold a practice under the Estab­lishment Clause. This Court sustained legislative prayer based on the sui generis reasons underlying its long and unbroken history. And none of those reasons support this Cross: (1) The Cross is not an internal practice to accommodate lawmakers; (2) The Cross aligns the government with Christianity and categori­cally excludes all other faiths; and (3) There is no long, unbroken historical practice to speak of, and even if there were, such history could not override the central and absolute prohibition against government sec­tarian preferences.

ILB. Nor should the Court accept the Legion's in­vitation to overturn seven decades of Establishment Clause precedents by holding that the Establishment Clause does nothing but require the government to avoid religious coercion. Coercion is certainly a clear example of an Establishment Clause violation, but no more so than sectarian favoritism.

Even Lemon's harshest critics have rejected what the Legion proposes. Justice Scalia, joined by Chief Justice Rehnquist, and Justices White and Thomas, agreed that government endorsement of a sectarian monument violates the Establishment Clause "even when no ersatz, 'peer-pressure' psycho-coercion is pre­sent." Chief Justice Rehnquist, Justice White, and Justice Scalia agreed with Justice Kennedy that the Establishment Clause plainly forbids the government from permitting the permanent erection of a large Latin cross on the roof on city hall.

IILA. If the Court reaches the Lemon question, it should reaffirm Lemon. Lemon was a carefully con­sidered 8-1 opinion of then-Chief Justice Burger that distilled the entirety of the Court's Establishment Clause jurisprudence into a workable analysis. The test has consistently been applied by this Court in religious display cases, yielding con­sistent results both in this Court and in the Circuits.

III.B. The government's prominent Cross runs afoul of the Lemon test because it endorses Christian­ity over all other religions and religion over non­religion.

IV.A. An affirmance will not doom other war me­morials. The Bladensburg Cross is an aberration and no other monument like it has been identified. Peti­tioners and their amici claim there are ''hundreds'' of war memorials that include a cross. In reality, they have identified only a handful of freestanding cross monuments and all but a few are in cemeteries, muse­ums, or other multi-faith complexes. The two smaller cross monuments in Arlington, for instance, are set amidst approximately 200 other monuments and memorials and are surrounded by a diverse array of religious symbols, whereas here, Christianity is singu­larly and overwhelmingly represented.

IV.B. Nor would an affirmance portend the "mu­tilation" of the Cross. Quite the opposite, relocating the Cross away from the pollutants that are currently causing its demise may be the Cross's only chance of survival.



Whatever else the Establishment Clause means, it must mean that the government cannot single out veterans of only one faith for commemoration while leaving the rest to be forgotten. “In our constitutional tradition, all citizens are equally American, no matter what God they worship or if they worship no god at all.”

The decision of the Fourth Circuit should be affirmed.