By Lisa Soronen
In American Legion v. American Humanist Society, the Supreme Court will decide whether a local government has violated the First Amendment by displaying and maintaining a 93-year-old, 40-foot tall Latin cross memorializing soldiers who died in World War I.
The State and Local Legal Center (SLLC) amicus brief argues the Supreme Court should rule the challengers have no standing to bring this case forward. The SLLC also argues the cross doesn’t violate the Establishment Clause and that the court should come up with a single, clear test to evaluate the constitutionality of public displays.
Citizens in Prince George’s County, Md., and an American Legion Post raised money to build the monument. In 1925 it was dedicated at a Christian prayer service, and, over the years, Christian religious services have been held at the cross.
In 1961, the Maryland-National Capital Park and Planning Commission took title of the land and the cross because it is located in the middle of a busy traffic median. The cross is part of a park honoring veterans. Other monuments are located anywhere from 200 feet to a half-mile from the cross. None are taller than 10 feet.
The First Amendment’s Establishment Clause prohibits the government from establishing religion. The Fourth Circuit applied the so-called three-prong Lemon test, as modified by the Supreme Court’s most recent monument decision Van Orden v. Perry (2005), to conclude that the government display and maintenance of this cross violates the Establishment Clause.
The lower court first concluded that the cross has a secular purpose, thus passing the first prong of the Lemon test. Specifically, the commission obtained the cross to maintain safety near a busy highway intersection and preserves the memorial to honor World War I soldiers.
But the Fourth Circuit concluded that a reasonable observer would understand this cross to advance religion. The Latin cross is the “preeminent symbol of Christianity.”
While the cross has secular elements (such as the words valor, endurance, courage, and devotion inscribed on its base and a plaque at the base listing the memorialized soldiers), the “immense size and prominence of the Cross" "evokes a message of aggrandizement and universalization of religion, and not the message of individual memorialization and remembrance that is presented by a field of gravestones.”
The Fourth Circuit also concluded that the cross fails Lemon’s third prong because it creates an excessive entanglement between government and religion. First, the commission has spent $117,000 to maintain and repair it. In 2008, it set aside an additional $100,000 for renovations. “Second, displaying the cross, particularly given its size, history, and context, amounts to excessive entanglement because the Commission is displaying the hallmark symbol of Christianity in a manner that dominates its surroundings and not only overwhelms all other monuments at the park, but also excludes all other religious tenets.”
The SLLC asks the Supreme Court to overturn the Fourth Circuit decision. The amicus brief first argues that the harm the challengers allege in this case—that they are offended by the memorial and wish to no longer have contact with it—is insufficient to have standing to bring a lawsuit.
The brief also argues the memorial doesn’t violate the Establishment Clause and describes at length the confusing body of law courts and state and local government attorneys have to sift through to determine whether a public display violates the Establishment Clause. The brief encourages the court to adopt a single, easy-to-apply standard to evaluate public displays so that their constitutionality may be resolved more quickly and easily.
Paul J. Zidlicky, Michael B. Buschbacher, and Christopher S. Ross of Sidley Austin wrote the SLLC brief which was joined by the National Association of Counties, the National League of Cities, the International City/County Management Association, the International Municipal Lawyers Association and the Government Finance Officers Association.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor on judicial issues to the NCSL Blog.