Earlier this week, the federal appeals court that governs North Carolina and other mid-Atlantic states held, in a 2-1 decision, that the display of a cross on public property in Maryland and its maintenance by state government violated the U.S. Constitution.
The government and others argued that it was simply part of a war memorial, rather than a government endorsement or entanglement with Christianity that violates the Constitution’s First Amendment.
The court found that the government’s display and maintenance of the cross has a “primary effect” that advances or endorses the Christian religion and fosters “an excessive entanglement between government and religion.” For these reasons, the court ruled that the cross violates the First Amendment.
The cross at issue is shown in the picture above.
The court deciding the case, the U.S. Court of Appeals for the Fourth Circuit, has jurisdiction over North Carolina, South Carolina, Virginia, West Virginia, and Maryland. Its decisions are binding on federal trial courts in those states.
This post provides summarizes aspects of the court’s analysis. Most all of the below quotes from or paraphrases the court’s written opinion explaining its ruling (quote marks are not used in many cases below to make it more readable).
What do you think of the court’s reasoning and conclusion?
1. History of the Cross at Issue
About 100 years ago, a private group in Maryland began raising money to build a giant cross to honor deceased WW I soldiers from the area, requiring each donor to sign a pledge stating that “TRUSTING IN GOD, THE SUPREME RULER OF THE UNIVERSE, … 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 group ran out of money, but an American Legion post assumed responsibility, holding a fundraiser and various services at which Christian prayer was undertaken.
The Legion built the cross a few years later on city-owned land. The dedication ceremony included Christian prayers and no other religion was represented.
“Over the years, memorial services continued to occur on a regular basis at the Cross, and those services often included prayer at invocations and benedictions…. Sunday worship services have at times been held at the Cross. Nothing in the record indicates that any of these services represented any faith other than Christianity.”
The state of Maryland obtained title to the Cross and the land on which it sits because of safety concerns: it is in the middle of a busy traffic median. The state has spent over $100,000 to maintain it and set aside another $100,000 ten years ago for renovations.
Today, the 40-foot Cross sits on a traffic island at the busy intersection of Maryland Route 450 and U.S. Route 1 in the city of Bladensburg.
“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 other monuments in the park area include a War of 1812 memorial, a WW II memorial, a Korean and Vietnam veterans memorial, and a 9/11 memorial walkway. These monuments are located at least 200 feet away from the Cross.
The other monuments are 10-feet tall or less, and there are no other religious symbols in the park.
2. The Court’s Legal Analysis
The U.S. Constitution provides, “Congress shall make no law respecting an establishment of religion . . . .” U.S. Const. amend. I. This is called the “Establishment Clause.”
This clause guarantees religious liberty and equality to people of all faiths.
Whether an action by a government is unlawful for violation of the Establishment Clause is evaluated under a three-part test set out by the U.S. Supreme Court in a 1971 decision called Lemon v. Kurtzman.
It says to comply with the Establishment Clause, a challenged government display must (1) have a secular purpose; (2) not have a “principal or primary effect” that advances, inhibits, or endorses religion; and (3) not foster “an excessive entanglement between government and religion.” These are called “the Lemon test” or “the Lemon prongs.”
“If a state action violates even one of these three prongs, that state action is unconstitutional.”
The state of Maryland argued that this three-part test does not apply and, instead, a test it perceived as more lenient, as set out by the U.S. Supreme Court in a 2005 decision, Van Orden v. Perry, controls. The court of appeals rejected that argument, but said it would give consideration to the Van Orden factors.
As to the first Lemon prong, the court found that government “preservation of a significant war memorial is a legitimate secular purpose.” Thus, the court found, the government did not violate the first prong.
As to the second Lemon prong, the court explained that it must ask “whether a particular display, with religious content, would cause a reasonable observer to fairly understand it in its particular setting as impermissibly advancing or endorsing religion.” The court stated that a “reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious speech takes place.” “Put differently, the effect prong asks whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval of religion.”
The court found that the immense size and prominence of the Cross necessarily “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 court concluded that the historical meaning and physical setting of the Cross overshadows its secular elements, explaining that “[t]hese factors collectively weigh in favor of concluding that the Cross endorses Christianity — not only above all other faiths, but also to their exclusion.”
As to the third prong, the court said, “there is excessive religious entanglement in this case for two reasons. First, the Commission owns and maintains the Cross, which is displayed on government property. The Commission has spent at least $117,000 to maintain the Cross and has set aside an additional $100,000 for restoration. Other cases holding that displays violate the Establishment Clause have involved de minimis government spending, if any. …
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.”
In summary, since the court found that the cross violates the second and third prongs of the Lemon test, the court found that the display and maintenance of the Cross violates the Establishment Clause.
One judge disagreed, asserting he would find the display of the cross constitutional.
As to the second Lemon prong, he reasoned that a reasonable observer “would not understand the effect of the Commission’s display of the Memorial—with such a commemorative past and set among other memorials in a large state park—to be a divisive message promoting Christianity over any other religion or nonreligion.”
As to the third Lemon prong, he found that the state “is merely maintaining a monument within a state park and a median in between intersecting highways that must be well lit for public safety reasons.” He also explained that the state’s spending of money “over the course of fifty-plus years for lighting and upkeep is not a promotion of any religious doctrine, as the Memorial is a historical monument honoring veterans.”
What do you think? Must the cross come down?
Did the two judges in the majority get it right? Or did the dissent get it right?
(The picture is a picture of the cross at issue included in the court’s opinion.)
Sources & Notes
The case is American Humanist Association v. Maryland-National Capital Park & Planning Comm., Case No. 15-2597 (4th Cir. October 18, 2017).
The summary mostly uses the court’s words, but does not put quotes around every quoted sentence to make it easier to read. I edited for brevity and clarity and left out some of the details to keep it reasonably short. You can view the court’s full opinion here: the court’s opinion.