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

INTRODUCTION

For 93 years, a monument commonly referred to as the Peace Cross has stood in commemoration of the residents of Prince George's County, Maryland who perished in the First World War. The Peace Cross is adorned with and surrounded by symbols of secular commemoration: a plaque dedicating it to the ser­vicemen who died; inscriptions honoring the univer­sal values for which they fought; and nearby monu­ments to those who fell in other wars or national tragedies. It has an unbroken history of community use as a site for civic commemorative events. And its shape, like hundreds of other monuments built in the aftermath of World War I, takes the form of a Latin cross, the "central symbol of the World War I over­seas cemetery."

Nonetheless, a divided panel of the Fourth Circuit declared the Peace Cross unconstitutional-and suggested possible remedies like "removing the arms or razing the Cross entirely"-solely because it bears the shape of a cross. That decision was grievously incorrect. Time and again, the Court has made clear that the Establishment Clause does not "require eradication of all religious symbols in the public realm." Salazar v. Buono (2010). Rather, virtually every Member of the Court has agreed that, at minimum, the government may display symbols associated with religion where the display's purpose and objective meaning are predominantly secular, or where the display fits within a long national tradi­tion of similar practices.

The Peace Cross is easily constitutional on both grounds. Its context and history make plain that it was intended to serve-and, for 93 years, has served-as a secular memorial to the war dead. And similar symbolic uses of the cross for secular com­memoration have existed in this Nation since before the Founding. If the Peace Cross must fall, so too must numerous other monuments-including two World War I crosses of comparable size and longevity in nearby Arlington National Cemetery.

STATEMENT

A. Historical Background

1. World War I caused death on a scale that the United States had not experienced since the Civil War. Over the course of the war, more than ten million soldiers from combatant nations gave their lives fighting in Europe. And in just 19 months, from Congress's declaration of war in April 1917 until the Armistice, over 126,000 American servicemen perished.

During the war, the U.S. military interred the re­mains of the fallen in makeshift cemeteries in Eu­rope. Except where its records reflected that a soldier was Jewish-and identifying soldiers was often impossible due to the newly destructive power of the weapons used-the military buried each serviceman under a temporary wooden cross. Photographs of wartime cemeter­ies published around the world depicted thousands of wooden crosses, arranged in seemingly endless rows. Few soldiers who served in the war forgot the image of those seas of crosses, which evoked the horrors of the trenches and "the brother­hood of the men who fought in them." And for families at home, separated by thousands of miles from the graves of their loved ones, the crosses were an indelible symbol of sacrifice and loss.

As respondents' own expert has written, "the cross" thus became "a central symbol of the American overseas cemetery" and "a cultural image of the battlefield." Numer­ous works of poetry, literature, and visual art employed the cross to represent the aspirations and futility of the Great War. In one of the most famous poems of the war, soldier-poet John McCrae wrote:

In Flanders fields the poppies blow Between the crosses, row on row That mark our place * * * *

Vincente Blasco Ibanez's novel The Four Horsemen of the Apocalypse, the best­selling book in America in 1919, used the image of fields of wooden crosses in its climactic scene to symbolize the war's monumental toll. In his allegor­ical painting Youth Mourning (1916), George Clausen depicts a woman bent over in grief on the edge of a battlefield, overshadowed by a large wood­en cross."

The U.S. Government itself employed crosses as a central symbol of the war. During the war, the Government printed posters with images of Latin crosses as battlefield grave site markers to encourage Americans to invest in war bonds. In 1918 and 1919, the President and Congress established three new medals for valor, all in the shape of a cross: the

Distinguished Service Cross, the Navy Cross, and the Air Force Cross.

When the time came to replace the temporary grave markers in Europe with permanent head­stones, veterans groups and Congress strongly advocated retaining the cross shape. The American Legion and the American War Mothers described these crosses as "symbols of sacrifice and remem­brance." A congressional resolution likewise explained that "these wooden symbols have * * * been regarded as emblematic of the great sacrifices which that war entailed." The American Battle Monuments Commission made a simple stone cross the default burial marker, includ­ing for soldiers whose identity or religion was un­known, while allowing Jewish soldiers to be buried under the Star of David. Several Jewish families elected the cross for their loved ones' graves, stating that they wished "that no distinction be made between them and their Christian comrades."

2. The aftermath of the war led to an outpouring of monument building to commemorate the men who had fought and died. Many chose to erect these monuments in the shape that had become synony­mous with wartime loss: the cross. Cross monuments served as a reminder of the sacri­fices of the fallen soldiers and the cause for which they had fought. They also filled an acute need created by the "scattering of the fallen": Because over 40 percent of servicemen were buried in over­seas cemeteries, these monuments served as echoes of those distant tombstones and provided a place for families to grieve and remember.

Two large cross monuments were built at Arlington National Cemetery. The Argonne Cross, erected in 1923, stands 13 feet tall, contains an image of an eagle and a wreath, and is dedicated "in memory of our men in France." The Canadian Cross of Sacri­fice, which was donated to the United States by Canada in 1927, is similar: It is 24 feet high, inlaid with a bronze sword, and contains a dedication to the "citizens of the United States who served in the Canadian Army and gave their lives in the Great War."

Many other monuments follow a similar design.

The St. Mihiel American Cemetery in France fea­tures a large limestone cross monument dedicated "to those who died for their country;" Sunrise Rock in the Mojave Desert contains an unadorned cross honoring veterans of the war-a monument that Congress has designated as "a national memorial commemorating United States participation in World War I and honoring the American veterans of that war." By one estimate, at least 40 World War I monuments were built in the United States that bear the shape of a cross.

Numerous World War I monuments abroad use the cross symbol, as well. The United Kingdom, Canada, and Australia collectively built hundreds of "Crosses of Sacrifice" to commemorate the war. France-a country whose policy of laicite commands strict separation of church and state-marked graves in its battlefield cemeteries with crosses, mirroring the battlefield "croix de bois" (wooden crosses) that had become known as "the privileged sign of French loss". Germany shared the symbol, as reflected poeti­cally by a mourner at the war cemetery at Roggevelde, who described "cross upon cross * * * on most of the graves there were low, yellow wooden crosses." As Charles Jagger, a veteran of World War I and a prominent post-war sculptor for the British War Memorials Committee, ex­plained, the cross ''has been and probably always will be the symbol of the Great War."

B. Factual Background

1. In 1919, residents of Prince George's County, Maryland also chose to use the symbol of the cross to commemorate those they had lost in World War I. That year, a group of bereaved mothers and other residents of the county formed the Prince George's County Memorial Committee for the purpose of honoring the 49 residents of the county who had died in the war. In its fundraising materials, the committee explained that it wished to build a memorial at "a strategic position" on "the Defense Highway leading from Washington to Annapolis," so that "the friends and loved ones of those who were in the great conflict will pass daily over a highway memorializing their boys who made the supreme sacrifice," and so that visitors could "renew the fires of patriotism and loyalty to the nation which prompted these young men to rally to the defense of the right." The citizen-organizers also distributed fund­raising pledge sheets that declared their "trust in God" and stated that "we contribute to this memorial cross commemorating the memory of those who have not died in vain."

The committee hired John Joseph Earley, a noted sculptor and pioneer in the figurative use of concrete, to design the monument. The commit­tee broke ground on the memorial site in September 1919. The mother of the first county resident killed in France shoveled the ceremonial first spadeful of earth, and Secretary of the Navy Josephus Daniels delivered the keynote address. Following the groundbreaking, one bereaved mother wrote to her senator thanking him for his contribution in support of the monument:

"The chief reason I feel so deeply in this matter," she explained, is that "my son * * * lost his life in France and because of that I feel that our memorial cross is, in a way, his grave stone."

By 1922, the committee had run out of funds, and construction halted. To save the effort, a local post of the American Legion-a patriotic veter­ans organization formed after World War I-took over the project. It completed the monument in 1925. At the dedication ceremony, U.S. Representative Stephen W. Gambrill gave a speech honoring the "men of Prince George's County" who "fought for the sacred right of all to live in peace and security." He expressed hope that the cross, which he at one point referred to as "symbolic of Calvary," would "let us keep fresh the memory of our boys who died for a righteous cause."

2. The Peace Cross rises 32 feet above its pedestal and bears the shape of a Latin cross. At its base, a large plaque lists the names of the 49 residents of Prince George's County who died in the war, and states: "This Memorial Cross is dedicated to the heroes of Prince George's County, Maryland, who lost their lives in the Great War for the liberty of the world." At the bottom, the plaque bears a quotation from President Wilson's speech to Congress asking for a Declaration of War, stating "The right is more precious than peace." Four words are inscribed on the monument, one on each face: ''VALOR; ENDURANCE; COURAGE; DEVOTION." The symbol of the American Legion is displayed at the monument's center, and an American flag flies at one side. Not a single word with a religious connotation appears on or near the Peace Cross.

In the decades since the Peace Cross was erected, other memorials have been built nearby to honor the veterans and fallen of other conflicts-a collection now known as Veterans Memorial Park. In 1944, a local American Legion post constructed a stone scroll 200 feet south of the Peace Cross to honor the men and women of Prince George's County who died in World War II. On July 4, 1983, a monument was dedicated beside the World War II memorial to honor the veterans of the Korean and Vietnam Wars. Other memorials within this small park commemo­rate the War of 1812, the victims of Pearl Harbor, and the lives lost on September 11, 2011. Recently, the community added two 38-foot-tall markers depicting soldiers who fought in the Battle of Bladensburg.

From its inception and up through the present day, the Peace Cross has consistently been used by the local community as the site of patriotic events to honor the Nation's veterans. These events have routinely taken place on Veterans Day, Memorial Day, or Independence Day, and typically follow the same format: There is the presentation of colors, a singing of the national anthem, an invocation, a keynote speaker-often a veteran or military official-a song or readings, the laying of a wreath or flowers, a benediction, and a reception. The only mention of a reli­gious event at the memorial is a private newspaper advertisement for a revival meeting from 1931, and there is no record that the event actually took place. Until the present suit, no one ever challenged the monument's legality.

In 1960, petitioner the Maryland-National Park and Planning Commission (the Commission), an independent Maryland state agency, acquired the Peace Cross in order to preserve the monument and address traffic safety concerns arising from the expansion of a nearby roadway. When the Commission obtained the mon­ument, the American Legion reserved the right "to hold memorial services to departed veterans and other ceremonies" at the memorial. Over the five decades that followed, the Commission spent approximately $117,000 to maintain and preserve the monument; in 2008, it budgeted $100,000 for renovations. The Monument has been listed on the National Register of Historic Places and forms a part of the Star Spangled Banner National Historic Trail.

C. Procedural History

1. Respondents are three local residents and the American Humanist Association. Respondent Steven Lowe has lived in the area for decades and first encountered the Peace Cross in 1982. He estimates that he "passes the Cross on average, about once a month." Respondent Fred Edwards first saw the monument in 2002 and has seen it several times since, while respondent Bishop McNeill moved to the area in 2013 and saw it at least four times that year.

Respondents filed this suit in 2014.

They contended that, because of its shape, the Peace Cross constitutes an unconstitutional endorsement of Christianity, and asked that the court order the removal or demolition of the memorial, or the remov­al of its arms "to form a non-religious slab or obe­lisk." The American Legion and its local affiliates intervened as defendants. After extensive discovery-in which the parties introduced expert reports and produced thousands of pages of documents-the parties moved for summary judg­ment.

The District Court granted summary judgment to the defendants. The court found "uncontroverted," "overwhelming evidence" that "the predominant purpose of the Peace Cross was for secular commemoration." Fur­thermore, it found that the monument's ''history and context"-including the numerous "secular elements on its face," the "secular memorials" that surround it, the monument's "nearly exclusive use" as a war memorial "for its entire history," and the absence of any legal challenge for nearly nine decades-made clear to any "reasonable observer" that the Peace Cross does not "endorse religion." The district court accordingly concluded that the Peace Cross satisfies the requirements of both Lemon v. Kurtzman, and the analysis applied by Justice Breyer's concurrence in Van Orden v. Perry (2005).

2. A divided panel of the Fourth Circuit reversed."

Writing for the majority, Judge Thacker "saw fit to apply Lemon" in this case, while giving "due consid­eration" to the "factors" Justice Breyer considered in Van Orden. The panel acknowledged that the memorial "satisfied the first prong of Lem­on": The Commission had "obtained the Cross" to "maintain * * * safety near a busy highway inter­section," and it "preserved the memorial to honor World War I soldiers," both plainly "legitimate secular purposes." But the panel concluded that the memorial "fails the second and third prongs of Lemon" because it "endorses Christi­anity-not only above all other faiths, but also to their exclusion."

The panel rested this conclusion on a single, over­riding consideration: that the memorial bears the shape of a large cross. "The Latin cross," the panel reasoned, "is the 'preeminent symbol of Christiani­ty.'" Although a cross "may generally serve as a symbol of death and me­morialization," the court continued, "it only holds value as a symbol of death and resurrection because of its affiliation with the crucifixion of Jesus Christ." Thus, the panel concluded, "even in the memorial context, a Latin cross serves not simply as a generic symbol of death, but rather a Christian symbol of the death of Jesus Christ."

The panel found that neither the history of the Peace Cross nor its secular content and context altered this exclusively sectarian meaning. The historical use of the cross "as a commemorative symbol of World War I" was "of no moment," the panel reasoned, because crosses "on World War I battlefields were individual-rather than univer­sal-memorials to the lives of Christian soldiers." Likewise, it was immaterial that the Peace Cross had "stood unchallenged for 90 years" and "primarily" been used for ''veteran­focused ceremonies" throughout that time. The "invocations and benedictions" at veterans' events, the panel stated, were themselves "group prayers." Further, the panel claimed that, unlike the Ten Commandments and "In God We Trust," the Latin cross is not "well known as being tied to our Nation's history and government." And, notwithstanding Van Orden, it was "too simplistic" to consider the monument's long history without challenge to be evidence of its "secu­lar effect." "Perhaps the longer a violation persists," the panel countered, "the greater the affront to those offended."

The panel likewise discounted the monument's exclusively secular content and context. "Admitted­ly," the panel said, "the Cross contains a few secular elements," including "the plaque," "the Legion sym­bol," "the words 'valor,' 'endurance,' 'courage,' and 'devotion' inscribed on its base," the "American flag flying in its vicinity," and "its location in the Veter­ans Memorial Park." But the panel expressed concern that "passers-by" might not view all of the monument's secular features, since it is "located in a high-traffic area" where "one could not easily park," and the plaque is "weathered" and once was partially obscured bushes. The panel added that a "reasonable observer" "could not help but note" that the monument is taller and more "prominent" than the surrounding monuments. This discrepancy, the panel reasoned, "evoked a message of aggrandizement and universalization of religion."

Thus, the court held that "the Cross * * * has the primary effect of endorsing religion." And, for much the same reason, it found that the Commission's maintenance of the Peace Cross re­sulted in "excessive entanglement between govern­ment and religion." By expending even "de minimis" funds to preserve the monument, the panel said, the Commission impermissibly "promoted * * * a religious doctrine, Christianity."

Chief Judge Gregory dissented. He explained that "the Supreme Court has consistently concluded that displays with religious content-but also with a legitimate secular use-may be permissible under the Establishment Clause." In his view, that principle resolved this case: The "appearance, context, and factual background" of the Peace Cross made clear to the reasonable observer that "the Memorial, while displaying a religious symbol, is a war memorial built to celebrate the forty-nine Prince George's County residents who gave their lives in battle." The majori­ty's conclusion that "the size of the Latin cross * * * overwhelms these secular elements," Chief Judge Gregory wrote, "would lead to per se findings that all large crosses are unconstitutional despite any amount of secular history and context."

3. The Fourth Circuit voted 8-6 to deny rehearing en banco. Chief Judge Gregory, Judge Wilkinson, and Judge Niemeyer all filed dissents. Chief Judge Gregory reiterated the views in his panel dissent, and Judge Wilkinson agreed: He would have "let the cross remain and let those hon­ored rest in peace." Judge Niemeyer explained that "it strains established judicial analysis to conclude that Van Orden does not allow the monument in this case to stand," given that every "observation" that Justice Breyer made of the Ten Commandments monument in Van Orden is applicable to the Peace Cross, too. Judge Niemeyer added that, by striking down the memorial, the panel's decision needlessly "puts at risk hundreds, and perhaps thousands, of similar monuments," including "those in nearby Arlington National Cemetery, where crosses of comparable size stand in commemoration of fallen soldiers."

 

SUMMARY OF ARGUMENT

The Fourth Circuit's decision would compel the removal or destruction of a 93-year-old war memorial that was erected to honor the men who died in World War I, and that for nine decades has been used exclusively for that purpose, solely because it bears the shape of a cross. That decision was profoundly mistaken, and neither the Establishment Clause nor this Nation's history and traditions support it.

A. The Court has time and again held that the Es­tablishment Clause "does not require eradication of all religious symbols in the public realm." Rather, governments may permissibly display symbols associated with a particular religion in order to promote universal values, honor historical events, or acknowledge the role of religion in society. Such benign invocations of religion do not meaningfully threaten the values of religious neutrality the Clause protects. On the contrary, requiring the destruction or dis­memberment of buildings, monuments, and other cherished structures that employ religious symbols and idioms would tend to promote the very sort of religiously-based divisiveness the Clause is designed to avoid.

Members of this Court have not agreed on a single test to govern Establishment Clause challenges to passive displays that use religious symbols. But all have agreed that, at minimum, such displays com­port with the Establishment Clause in at least two circumstances. 

First, there is widespread agreement that a display does not violate the Establishment Clause if both the government's purpose in maintaining the display and the objective meaning of the display are predomi­nantly secular. In recent cases, the Court has made clear that courts should take a wide-angle view of the monument's context in identifying its purpose and meaning: In addition to examining the face of the display and its immediate surroundings, courts should consider how the symbol is generally used, the circumstances surrounding the monument's placement, the broader physical setting of the mon­ument, and the history of the monument. In Van Orden, Justice Breyer's controlling opinion applied this approach to uphold a display of the Ten Com­mandments on the grounds of the Texas State Capi­tol. And in Buono, the plurality applied a similar approach to invalidate an injunction that would have compelled the removal of a 76-year-old cross-shaped World War I memorial.

Second, the Court has held that a display or prac­tice accords with the Establishment Clause if it fits within a longstanding history or tradition of similar practices. When a longstanding practice has not stirred sectarian controversy, that is a powerful indicator that it can coexist peacefully with princi­ples of disestablishment. Moreover, individuals will generally understand such longstanding traditions as ways of solemnizing or of honoring universal values, not as means of expressing religious favorit­ism or coercing religious practice.  

B. Under either of these approaches, the Peace Cross is plainly constitutional.

Every one of the contextual factors this Court has previously considered affirms that the purpose and objective meaning of the Peace Cross are secular. The symbol at the heart of the monument-the cross-has a ubiquitous and well-established mean­ing of commemorating military valor and sacrifice, especially when associated with World War I. Mul­tiple physical features of the monument-including the dedication, inscriptions, and American Legion symbol, as well as the monument's origin as a way of commemorating the war dead-reinforce that secular message. The physical setting of the monument, Veterans Memorial Park, is a collection of secular memorials to the fallen of our Nation's conflicts. And the monument's nine-decade history without contro­versy, during which time it acquired an additional meaning as an artistic and historical landmark, confirms that the Peace Cross has a secular purpose and meaning.

The Peace Cross also fits within a widespread and venerable national tradition of using the cross as a symbol of valor and sacrifice. Monuments using the cross this way have existed in this Nation since before the Founding, and cross-shaped military memorials are especially common to honor those who fell in the Civil War and World War I. Congress has given recognition to this tradition by enacting stat­utes that designate cross-shaped memorials as national monuments to war dead and by creating military decorations in the shape of a cross to honor martial valor. The Peace Cross fits well within this tradition.

The Fourth CircuitÕs holding to the contrary rested entirely on its view that the Peace Cross was being maintained as a Christian symbol. But, for the reasons already given, that premise is incorrect, and the Fourth CircuitÕs entanglement analysis accordingly crumbles with it.

 

CONCLUSION

The Establishment Clause does not compel these senseless results. The Peace Cross fully accords with the Constitution's call for religious neutrality. And the Court should "let those honored rest in peace." The judgment of the Fourth Circuit should be reversed.