A federal appeals court has ruled that a 40-foot-tall cross at a busy intersection in Prince George's County is an unconstitutional violation of the First Amendment that prohibits the government from favoring a certain religion.

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-2597

AMERICAN HUMANIST ASSOCIATION;

EDWORDS; BISHOP MCNEILL,

STEVEN

LOWE;

FRED

Plaintiffs a Appellants,

v.

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION,

Defendant a Appellee,

THE AMERICAN LEGION; THE AMERICAN LEGION DEPARTMENT OF

MARYLAND; THE AMERICAN LEGION COLMAR MANOR POST 131,

Intervenors/Defendants a Appellees,

--------------------------------FREEDOM FROM RELIGION FOUNDATION; CENTER FOR INQUIRY,

Amici Supporting Appellant,

THE BECKETT FUND FOR RELIGIOUS LIBERTY; JOE MANCHIN; DOUG

COLLINS; VICKY HARTZLER; JODY HICE; EVAN JENKINS; JIM JORDAN;

MARK MEADOWS; ALEX MOONEY; STATE OF WEST VIRGINIA; STATE

OF ALABAMA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF

FLORIDA; STATE OF GEORGIA; STATE OF HAWAII; STATE OF IDAHO;

STATE OF INDIANA; STATE OF KANSAS; STATE OF KENTUCKY; STATE

OF LOUISIANA; STATE OF MICHIGAN; STATE OF MONTANA; STATE OF

NEVADA; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF

OKLAHOMA; STATE OF RHODE ISLAND; STATE OF SOUTH CAROLINA;

STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE OF UTAH; STATE

OF VIRGINIA; STATE OF WISCONSIN,

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Amici Supporting Appellee.

Appeal from the United States District Court of Maryland, at Greenbelt. Deborah K.

Chasanow, Senior District Judge. (8:14-cv-00550-DKC)

ARGUED: December 7, 2016

Decided: October 18, 2017

Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.

Reversed and remanded by published opinion. Judge Thacker wrote the opinion, which

Judge Wynn joined. Chief Judge Gregory wrote an opinion concurring in part and

dissenting in part.

ARGUED: Monica Lynn Miller, AMERICAN HUMANIST ASSOCIATION,

Washington, D.C., for Appellants. Christopher John DiPompeo, JONES DAY,

Washington, D.C.; William Charles Dickerson, MARYLAND-NATIONAL CAPITAL

PARK AND PLANNING COMMISSION, Riverdale, Maryland, for Appellees. ON

BRIEF: David A. Niose, AMERICAN HUMANIST ASSOCIATION, Washington,

D.C.; Daniel P. Doty, LAW OFFICE OF DANIEL P. DOTY, P.A., Baltimore, Maryland,

for Appellants.

Adrian R. Gardner, Tracey A. Harvin, Elizabeth L. Adams,

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION,

Riverdale, Maryland, for Appellee Maryland-National Capital Park and Planning

Commission; Noel J. Francisco, JONES DAY, Washington, D.C.; Roger L. Byron,

Kenneth A. Klukowski, FIRST LIBERTY, Plano, Texas, for Appellees The American

Legion, The American Legion Department of Maryland, and The American Legion

Colmar Manor Post 131.

Patrick C. Elliott, FREEDOM FROM RELIGION

FOUNDATION, Madison, Wisconsin, for Amici Freedom From Religion Foundation

and Center For Inquiry. Eric C. Rassbach, THE BECKET FUND FOR RELIGIOUS

LIBERTY, Washington, D.C.; Paul J. Zidlicky, SIDLEY AUSTIN LLP, Washington,

D.C., for Amicus The Becket Fund for Religious Liberty. Charles J. Cooper, David H.

Thompson, Howard C. Nielson, Jr., Haley N. Proctor, COOPER & KIRK, PLLC,

Washington, D.C., for Amici Senator Joe Manchin and Representatives Doug Collins,

Vicky Hartzler, Jody Hice, Evan Jenkins, Jim Jordan, Mark Meadows, and Alex Mooney.

Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Julie Marie Blake,

Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST

VIRGINIA, Charleston, West Virginia, for Amicus State of West Virginia; Steve

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Marshall, Attorney General of Alabama, Montgomery, Alabama, for Amicus State of

Alabama; Mark Brnovich, Attorney General of Arizona, Phoenix, Arizona, for Amicus

State of Arizona; Leslie Rutledge, Attorney General of Arkansas, Little Rock, Arkansas,

for Amicus State of Arkansas; Pamela Jo Bondi, Attorney General of Florida,

Tallahassee, Florida, for Amicus State of Florida; Christopher M. Carr, Attorney General

of Georgia, Atlanta, Georgia, for Amicus State of Georgia; Douglas S. Chin, Attorney

General of Hawaii, Honolulu, Hawaii, for Amicus State of Hawaii; Lawrence G. Wasden,

Attorney General of Idaho, Boise, Idaho, for Amicus State of Idaho; Curtis Hill, Attorney

General of Indiana, Indianapolis, Indiana, for Amicus State of Indiana; Derek Schmidt,

Attorney General of Kansas, Topeka, Kansas, for Amicus State of Kansas; Andy

Beshear, Attorney General of Kentucky, Frankfort, Kentucky, for Amicus State of

Kentucky; Jeff Landry, Attorney General of Louisiana, Baton Rouge, Louisiana, for

Amicus State of Louisiana; Bill Schuette, Attorney General of Michigan, Lansing,

Michigan, for Amicus State of Michigan; Timothy C. Fox, Attorney General of Montana,

Helena, Montana, for Amicus State of Montana; Adam Paul Laxalt, Attorney General of

Nevada, Carson City, Nevada, for Amicus State of Nevada; Wayne Stenehjem, Attorney

General of North Dakota, Bismarck, North Dakota, for Amicus State of North Dakota;

Michael DeWine, Attorney General of Ohio, Columbus, Ohio, for Amicus State of Ohio;

E. Scott Pruitt, Attorney General of Oklahoma, Oklahoma City, Oklahoma, for Amicus

State of Oklahoma; Peter F. Kilmartin, Attorney General of Rhode Island, Providence,

Rhode Island, for Amicus State of Rhode Island; Alan Wilson, Attorney General of South

Carolina, Columbia, South Carolina, for Amicus State of South Carolina; Marty J.

Jackley, Attorney General of South Dakota, Pierre, South Dakota, for Amicus State of

South Dakota; Ken Paxton, Attorney General of Texas, Austin, Texas, for Amicus State

of Texas; Sean D. Reyes, Attorney General of Utah, Salt Lake City, Utah, for Amicus

State of Utah; Mark R. Herring, Attorney General of Virginia, Richmond, Virginia, for

Amicus Commonwealth of Virginia; Brad D. Schimel, Attorney General of Wisconsin,

Madison, Wisconsin, for Amicus State of Wisconsin.

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THACKER, Circuit Judge:

In this case we are called upon to decide whether the Establishment Clause is

violated when a local government displays and maintains on public property a 40-foot tall

Latin cross, established in memory of soldiers who died in World War I. The district

court determined that such government action does not run afoul of the Establishment

Clause because the cross has a secular purpose, it neither advances nor inhibits religion,

and it does not have the primary effect of endorsing religion.

We disagree. The monument here has the primary effect of endorsing religion and

excessively entangles the government in religion. The Latin cross is the core symbol of

Christianity. And here, it is 40 feet tall; prominently displayed in the center of one of the

busiest intersections in Prince Georgeas County, Maryland; and maintained with

thousands of dollars in government funds. Therefore, we hold that the purported war

memorial breaches the awall of separation between Church and State.a Everson v. Bd. of

Educ., 330 U.S. 1, 16 (1947) (internal quotation marks omitted).

Accordingly, we

reverse and remand.

I.

A.

In 1918, some Prince Georgeas County citizens started raising money to construct

a giant cross, in addition to a previously established plaque, to honor 49 World War I

soldiers from the county. The private organizers required each donor to sign a pledge

sheet recognizing the existence of one god. It stated:

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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, aONE GOD, ONE COUNTRY AND

ONE FLAG,a WE CONTRIBUTE TO THIS MEMORIAL

CROSS COMMEMORATING THE MEMORY OF THOSE

WHO HAVE NOT DIED IN VAIN.

J.A. 1168 (emphasis supplied). 1 Local media described the proposed monument as a

amammoth cross, a likeness of the Cross of Calvary, as described in the Bible.a 2 Id. at

1115. The private organizers held a groundbreaking ceremony on September 28, 1919, at

which time the city of Bladensburg owned the land.

In 1922, the private organizers ran out of money and could not finish the project.

So, the Snyder-Farmer Post of the American Legion (the aPosta) assumed responsibility.

At its initial fundraising drive, the Post had a Christian prayer-led invocation. Later that

same year, on Memorial Day, the Post held memorial services around the unfinished

monument, at which a Christian chaplain led prayer, and those in attendance sang the

Christian hymn aNearer My God to Thee.a J.A. 2096. The Post ultimately completed

1

Citations to the aJ.A.a or aSupp. J.A.a refer to the Joint Appendix and

Supplemental Joint Appendix, respectively, filed by the parties in this appeal.

2

aCalvarya refers to the aproper name of the place where [Jesus] Christ was

crucified.a J.A. 289.

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the monument in 1925 and had Christian prayer services at the dedication ceremony,

during which only Christian chaplains took part. No other religions were represented.

Upon completion, the monument at issue stood four stories tall in the shape of a

Latin cross located in the median of a three-way highway intersection in Bladensburg,

Maryland (the aCrossa). 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, and speaker-led prayers. 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.

On March 1, 1961, Appellee Maryland-National Capital Park and Planning

Commission (the aCommissiona), a state entity, obtained title to the Cross and the land

on which it sits. According to the Commission, it acquired the Cross and land in part

because of safety concerns arising from the placement of the Cross in the middle of a

busy traffic median. Therefore, the Commission purports that it assumed responsibility

to amaintain[], repair[], and otherwise car[e] fora the Cross. J.A. 2529. The Commission

has since spent approximately $117,000 to maintain and repair the Cross, and in 2008, it

set aside an additional $100,000 for renovations.

B.

Today, the 40-foot tall Cross is situated on a traffic island taking up one-third of

an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg.

The American Legionas symbol -- a small star inscribed with aU.S.a -- is affixed near the

top of the Cross, and an American flag flies in the vicinity of the Cross. The Cross sits

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on a rectangular base, with each side inscribed with one of four words: avalor,a

aendurance,a acourage,a and adevotion.a

J.A. 1963 (capitalization omitted).

Additionally, one side of the base contains a two-foot tall, nine-foot wide plaque listing

the names of the 49 soldiers from Prince Georgeas County whom the Cross memorializes,

followed by a quote by President Woodrow Wilson. 3 However, the plaque is located on

only one side of the base, which bushes have historically obscured. 4 Moreover, the

plaque is badly weathered, rendering it largely illegible to passing motorists.

The Cross is part of a memorial park honoring veterans in Bladensburg (the

aVeterans Memorial Parka).

A small sign titled aStar-Spangled Banner National

Historical Traila 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, aThis crossroads has become a place for communities to commemorate

their residents in service and in death.a

J.A. 1870.

The other monuments in the

memorial park area include a War of 1812 memorial, a World War II memorial, a Korean

and Vietnam veterans memorial, and a September 11th memorial walkway.

These

surrounding monuments are each located at least 200 feet away from the Cross, with the

3

aThe 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.a J.A. 1891.

4

The bushes were removed in response to the filing of this action in an attempt to

accommodate Appellantsa requests. See Oral Argument at 26:50a27:00, Am. Humanist

Assoc. v. Maryland-Natal Capital Park & Planning Comman, No. 15-2597,

http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments (Dec. 7, 2016).

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War of 1812 memorial located one-half mile away. No other monument in the area is

taller than ten feet, and there are no other religious symbols in the park.

Beyond the above description of the Cross and its placement in the park, various

photographs from the record depicting the Cross are attached to this opinion. See J.A. 34

(image of the Cross before this case was filed), 1098 (closer image of the Cross), 1891

(image of the weathered plaque at the base of the Cross); Supp. J.A. 2 (overhead image of

the Veterans Memorial Park).

II.

Appellants Steven Lowe, Fred Edwords, and Bishop McNeill are non-Christian

residents of Prince Georgeas County who have faced multiple instances of unwelcome

contact with the Cross. Specifically, as residents they have each regularly encountered

the Cross while driving in the area, believe the display of the Cross amounts to

governmental affiliation with Christianity, are offended by the prominent government

display of the Cross, and wish to have no further contact with it. Per their complaint,

they believe aa more fitting symbol of [veteransa] sacrifice would be a symbol of the

Nation for which they fought and died, not a particular religion.a J.A. 25. Appellant

American Humanist Association (aAHAa) is a nonprofit organization that advocates to

uphold the founding principle of separation of church and state. AHA is suing on behalf

of its members. 5

5

Where appropriate, Appellants AHA, Lowe, Edwords, and McNeill are

collectively referred to as aAppellants.a

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As noted, Appellee Commission, a state entity, owns and maintains the Cross and

the traffic island on which it stands. Appellees-Intervenors are the American Legion, the

American Legion Department of Maryland, and the American Legion Colmar Manor

Post 131 (collectively, athe Legiona). 6 The Legion is a private organization focused on

aAmericanisma and the armed forces. J.A. 1469.

Appellants sued the Commission under 42 U.S.C. ASS 1983, alleging the

Commissionas display and maintenance of the Cross violates the Establishment Clause.

Appellants seek a declaratory judgment that this conduct violates the Establishment

Clause and Appellantsa constitutional rights, an injunction enjoining the Commission

from displaying the Cross on public property, 7 nominal damages, and attorneyas fees and

costs.

Appellants and Appellees filed cross-motions for summary judgment, and the

district court granted summary judgment to Appellees. In doing so, the district court

analyzed Appellantsa claim pursuant to Lemon v. Kurtzman, 403 U.S. 602 (1971). It held

the Commission owned the Cross and land for a legitimate secular reason, that is, to

6

Where appropriate, the Commission and Legion are collectively referred to as

aAppellees.a

7

Appellants later clarified their desired injunctive relief as removal or demolition

of the Cross, or removal of the arms from the Cross ato form a non-religious slab or

obelisk.a J.A. 131.

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maintain the highway median. The district court also identified a second secular purpose,

which is to commemorate the 49 World War I soldiers from Prince Georgeas County. 8

The district court next determined that the Cross neither advanced nor inhibited

religion because (1) the Cross has been primarily used for veteransa events; (2) crosses

are generally regarded as commemorative symbols for World War I, at least overseas; (3)

secular war memorials surround the Cross; and (4) the Cross has secular attributes, such

as the Legion symbol on the face of the Cross. Finally, the district court concluded the

Commissionas display and maintenance of the Cross did not amount to excessive

entanglement with religion because the Cross was not a governmental endorsement of

religion. At bottom, the district court viewed the Commissionas maintenance of the

Cross as relating to traffic safety and veteran commemoration rather than religion.

Appellants timely appealed.

III.

We review de novo a district courtas grant of summary judgment. See Elderberry

of Weber City, LLC v. Living Centers-Se., Inc., 794 F.3d 406, 411 (4th Cir. 2015). aIn

doing so, we apply the same legal standards as the district court, and view all facts in the

light most favorable to the nonmoving party.a Certain Underwriters at Lloydas, London

v. Cohen, 785 F.3d 886, 889 (4th Cir. 2015) (alterations and internal quotation marks

omitted).

8

Alternatively, the district court applied Van Orden v. Perry, 545 U.S. 677 (2005),

and reached the same conclusion.

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IV.

Appellants contend that the Cross is a war memorial that favors Christians to the

exclusion of all other religions. In response, Appellees frame Appellantsa claim as

promoting a strict rule that crosses on government property are per se unconstitutional,

which they assert threatens memorials across the Nation.

A.

As an initial matter, Appellees question whether Appellants have standing to bring

this claim. They argue that Appellants have not aforgone any legal rights,a such as athe

right to drive on the public highways running through [the] Veterans Memorial Parka ato

avoid contact with the memorial.a Appelleesa Br. 46 n.12. Appelleesa standing argument

lacks merit.

An Establishment Clause claim is justiciable even when plaintiffs claim

noneconomic or intangible injury. See Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th

Cir. 1997); see also Intal Refugee Assistance Project v. Trump, 857 F.3d 554, 582 (4th

Cir.), cert. granted, 137 S. Ct. 2080 (2017). Specifically, in religious display cases,

aunwelcome direct contact with a religious display that appears to be endorsed by the

statea is a sufficient injury to satisfy the standing inquiry. Suhre, 131 F.3d at 1086.

The non-AHA Appellants have standing because they allege specific unwelcome

direct contact with the Cross; that is, they have each regularly encountered the Cross as

residents while driving in the area, the Commission caused such injury by displaying the

Cross, and the relief sought -- enjoining the display of the Cross -- would redress their

injury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560a61 (1992); see also ACLU v.

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Rabun Cty. Chamber of Commerce, Inc., 698 F.2d 1098, 1108 (11th Cir. 1983)

(determining one plaintiff had standing because a Latin cross was clearly visible from

athe porch of his summer cabina and from the roadway he used to reach the cabin). The

AHA also has standing. An association has standing to sue on behalf of its members if

they would have standing to sue on their own, the association seeks to protect interests

germane to its purpose, and neither the claim asserted nor the relief requested requires its

individual members to participate in the lawsuit. See Hunt v. Wash. State Apple Advert.

Comman, 432 U.S. 333, 343 (1977); ACLU of Ohio Found., Inc. v. DeWeese, 633 F.3d

424, 429 (6th Cir. 2011). Here, the AHA has members in Prince Georgeas County who

have faced unwelcome contact with the Cross. These interests are germane to the AHAas

purpose of maintaining the separation of church and state, and the claim and relief sought

do not require individual participation. Appellants thus have standing to sue, and so we

turn to the merits of this case.

B.

The Establishment Clause provides, aCongress shall make no law respecting an

establishment of religion . . . .a U.S. Const. amend. I. This clause thus guarantees

religious liberty and equality to people of all faiths. See Cty. of Allegheny v. ACLU, 492

U.S. 573, 590 (1989), abrogated on other grounds, Town of Greece v. Galloway, 134 S.

Ct. 1811 (2014).

We have generally analyzed Establishment Clause issues pursuant to Lemon v.

Kurtzman, 403 U.S. 602 (1971). See Buxton v. Kurtinitis, 862 F.3d 423, 432 (4th Cir.

2017); Lambeth v. Bd. of Commars of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005);

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Mellen v. Bunting, 327 F.3d 355, 370 (4th Cir. 2003). Per Lemon, to comply with the

Establishment Clause, a challenged government display must (1) have a secular purpose;

(2) not have a aprincipal or primary effecta that advances, inhibits, or endorses religion;

and (3) not foster aan excessive entanglement between government and religion.a

Lambeth, 407 F.3d at 269a73 (internal quotation marks omitted); see Lemon, 403 U.S. at

612a13. aIf a state action violates even one of these three prongs, that state action is

unconstitutional.a Koenick v. Felton, 190 F.3d 259, 265 (4th Cir. 1999) (citing N.C. Civil

Liberties Union Legal Found. v. Constangy, 947 F.2d 1145, 1147 (4th Cir. 1991)); see

also Buxton, 862 F.3d at 432.

However, Appellees dispute Lemonas application here, arguing that, instead, the

Supreme Courtas holding in Van Orden v. Perry, 545 U.S. 677 (2005), controls. In Van

Orden, the Court addressed whether a monument displaying the Ten Commandments on

government property violated the Establishment Clause. See 545 U.S. at 681. The

monument, located between the Texas Capitol and the Texas Supreme Court building,

also displayed an eagle grasping the American flag, two Stars of David, Greek letters

representing Christ, and an inscription indicating that a private organization donated the

monument. See id. at 681a82. The monument stood six-feet high and three-and-a-half

feet wide, and sat among a17 monuments and 21 historical markers commemorating the

people, ideals, and events that compose Texan identity,a id. at 681 (internal quotation

marks omitted), such as monuments of the Heroes of the Alamo, the Texas National

Guard, and the Texas Peace Officers, see id. at 681 n.1.

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A plurality of the Court first decided the Lemon test is anot usefula in the

apassivea monument context. Van Orden, 545 U.S. at 686. Rather, it examined the role

and historical meanings of God and the Ten Commandments in our Nationas history. See

id. at 686a91. The plurality first noted President George Washingtonas Thanksgiving

Day Proclamation of 1789, which adirectly attributed to the Supreme Being the

foundations and successes of our young Nation,a as an example of the aunbroken history

of official acknowledgment by all three branches of government of the role of religion in

American life from at least 1789.a Id. at 686a87 (quoting Lynch v. Donnelly, 465 U.S.

668, 674 (1984)). It also recognized athe role of God in our Nationas heritage,a pointing

to other Ten Commandment displays in federal buildings, including the Supreme Courtas

own courtroom and the Library of Congress, which reinforced the secular connection

between our Nation and the Ten Commandments. See id. at 687a89. Though the Ten

Commandments have religious significance, the plurality noted that the Ten

Commandments were given to Moses, who awas a lawgiver as well as a religious leader.a

Id. at 690. Finally, the plurality viewed the placement of the monument on the Texas

State Capitol grounds as afar more passivea when compared to other display cases,

especially because the petitioner in Van Orden awalked by the monument for a number of

yearsa before suing. Id. at 691. Taking all of these considerations as a whole, the

plurality concluded that the display in Van Orden did not violate the Establishment

Clause.

Justice Breyeras concurrence, however, is controlling because it is the narrowest

ground upholding the majority. See Marks v. United States, 430 U.S. 188, 193 (1977);

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A.T. Massey Coal Co. v. Massanari, 305 F.3d 226, 236 (4th Cir. 2002); see also Card v.

City of Everett, 520 F.3d 1009, 1017 n.10 (9th Cir. 2008) (noting Justice Breyeras

concurrence controls); Staley v. Harris Co., 485 F.3d 305, 308 n.1 (5th Cir. 2007) (same);

Bronx Household of Faith v. Bd. of Educ., 650 F.3d 30, 49 (2d Cir. 2011) (same); ACLU

v. Grayson Co., 591 F.3d 837, 847 (6th Cir. 2010) (applying Van Orden and relying

primarily on Justice Breyeras concurrence). The concurrence explains that courts should

remain faithful to the abasic purposesa of the Establishment Clause by examining, for

example, the circumstances surrounding the monumentas placement, its physical setting,

and the length of time it remains unchallenged. Van Orden, 545 U.S. at 698, 700a03

(Breyer, J., concurring). In addition, however, Justice Breyer clarified that the Lemon

test continues to act as a auseful guidepost[]a in Establishment Clause cases involving

monuments with both secular and sectarian meanings. Id. at 700. The controlling Van

Orden decision thus did not overrule Lemon; to the contrary, Justice Breyer actually

recognized Lemon as a amore formal Establishment Clause test[].a Id. at 703. And this

court has consistently applied Lemon in religious display cases. See, e.g., Lambeth, 507

F.3d at 268a69; Smith v. Cty. of Albemarle, 895 F.2d 953, 958 (4th Cir. 1990). Thus, we

see fit to apply Lemon in this case, with due consideration given to the Van Orden

factors.

C.

For their part, Appellees assert Van Orden adictates the outcome of this case,a and

there is no Establishment Clause violation because (1) the Commissionas involvement

relates to highway safety; (2) memorials surrounding the Cross commemorate veterans;

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and (3) the Cross has stood unchallenged for 90 years. Appelleesa Br. 21. But even

under Lemon, Appellees contend that they prevail, particularly because the Crossas

acontent, setting, and history make clear to a reasonable objective observer that its

primary effect is commemoration, not religious endorsement.a Id. at 22. Therefore,

Appellees argue that they prevail regardless of whether Van Orden or Lemon applies.

In support of their argument to the contrary, Appellants primarily rely on Lemonas

second prong -- that is, the aeffect of advancing religion.a Appellants highlight the Latin

crossas inherent religious message, the history of religious activity involving the Cross,

the Crossas size and prominence, and its limited secular features. Appellants alternatively

assert that the Cross is unconstitutional under Van Orden because the Latin cross lacks

any connection to our Nationas history, and the Crossas physical setting undermines the

Establishment Clause.

As explained above, we analyze this case pursuant to the three-prong test in

Lemon with due consideration given to the factors outlined in Van Orden, mindful that a

violation of even one prong of Lemon results in a violation of the Establishment Clause.

1.

Secular Purpose

Demonstrating a legitimate secular purpose is aa fairly low hurdle.a Brown v.

Gilmore, 258 F.3d 265, 276 (4th Cir. 2001) (internal quotation marks omitted).

Moreover, government action having adual legitimate purposesa -- one secular and one

sectarian -- acannot run afoul of the first Lemon prong.a Id. at 277.

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The Commission has articulated legitimate secular purposes for displaying and

maintaining the Cross that satisfy the first prong of Lemon. See Lynch, 465 U.S. at 680a

81. The Commission obtained the Cross for a secular reason -- maintenance of safety

near a busy highway intersection. The Commission also preserves the memorial to honor

World War I soldiers. Government preservation of a significant war memorial is a

legitimate secular purpose. See Trunk v. City of San Diego, 629 F.3d 1099, 1108 (9th

Cir. 2011). Thus, the Commission has satisfied the first prong of Lemon.

2.

Effect

The second prong of Lemon requires this court to ask awhether 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.a Lambeth, 407

F.3d at 271. A areasonable 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.a Good News Club v. Milford Cent. Sch., 533 U.S. 98, 119 (2001) (alterations

omitted) (quoting Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 779a

80 (1995) (OaConnor, J., concurring)). aPut differently, the effect prong asks whether,

irrespective of governmentas actual purpose, the practice under review in fact conveys a

message of endorsement or disapproval of religion.a Mellen, 327 F.3d at 374 (alterations

and internal quotation marks omitted). This second prong therefore requires a detailed

factual analysis of the Cross, including its meaning, history, and secularizing elements,

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and, where relevant, we consider the appropriate factors under Van Orden. See Trunk,

629 F.3d at 1110.

a.

Meaning of the Latin Cross

The Latin cross is the apreeminent symbol of Christianity.a Buono v. Norton, 371

F.3d 543, 545 (9th Cir. 2004) (internal quotation marks omitted); see Robinson v. City of

Edmond, 68 F.3d 1226, 1232 (10th Cir. 1995); Gonzales v. N. Twp. of Lake Cty., 4 F.3d

1412, 1418 (7th Cir. 1993); Murray v. City of Austin, 947 F.2d 147, 149 (5th Cir. 1991);

ACLU v. Rabun Cty. Chamber of Commerce, Inc., 698 F.2d 1098, 1110 (11th Cir. 1983).

Indeed, the Latin cross is aexclusively a Christian symbol, and not a symbol of any other

religion.a Trunk, 629 F.3d at 1111 (internal quotation marks omitted); see Buono, 371

F.3d at 545; Gonzales, 4 F.3d at 1418 (a[W]e are masters of the obvious, and we know

that the crucifix is a Christian symbol.a). Notwithstanding the Latin crossas inherent

religious meaning, the district court concluded that it is also a symbol of World War I,

particularly overseas. Specifically, the district court concluded that the Cross at issue

here evokes the image of white crosses on foreign battle fields. For this proposition, it

cites the Legionas expert witness report, which states that athe symbolism of the cross is

that of individual loss of life, not of the Resurrection [of Jesus Christ].a J.A. 1898.

While the Latin cross may generally serve as a symbol of death and

memorialization, it only holds value as a symbol of death and resurrection because of its

affiliation with the crucifixion of Jesus Christ. See Carpenter v. City and Cty. of San

Francisco, 93 F.3d 627, 630 (9th Cir. 1996) (aThe Latin cross is the preeminent symbol

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of many Christian religions and represents with relative clarity and simplicity the

Christian message of the crucifixion and resurrection of Jesus Christ, a doctrine at the

heart of Christianitya (internal quotation marks omitted)); ACLU v. City of St. Charles,

794 F.2d 265, 273 (7th Cir. 1986) (aIt is the principal symbol of the Christian religion,

recalling the crucifixion of Jesus Christ and the redeeming benefits of his passion and

deatha (internal quotation marks omitted)). One simply cannot ignore the fact that for

thousands of years the Latin cross has represented Christianity. 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. 9 Further, even if other countries may

identify the Latin cross as a commemorative symbol of World War I, that

acknowledgment does not dictate our analysis. Indeed, crosses used on World War I

battlefields were individual -- rather than universal -- memorials to the lives of Christian

soldiers. 10

And this Nation, unlike others, maintains a clearly defined wall between

9

The argument could be made that to hold that the Latin cross symbolizes

anything other than Christianity may be deemed offensive to Christians. The Latin cross

areminds Christians of Christas sacrifice for His people,a and ait is unequivocally a

symbol of the Christian faith.a Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1022

(10th Cir. 2008).

10

The poppy has actually been known as a universal symbol for commemorating

World War I. See Trunk, 629 F.3d at 1113; Eang L. Ngov, Selling Land and Religion, 61

U. Kan. L. Rev. 1, 28 (2012) (aThe poppy, as depicted in the famous poem In Flanders

Fields, not the cross, became the universal symbol in the United States and abroad for the

foreign warsa (footnotes omitted)); The Cambridge Encyclopedia 877 (6th ed. 2006)

(aRed poppies, which grew wild in the fields of Flanders, are used in November as a

symbol of remembrance of those who died in the two World Warsa); see generally H.R.

Rep. No. 80-2071 (discussing the use of the poppy to memorialize World War I and

reporting favorably on commemorative stamps depicting the poppy); Ryan Valentin, Milk

(Continued)

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church and state that amust be kept high and impregnable.a Everson v. Bd. of Educ., 330

U.S. 1, 18 (1947). Thus, the manner in which other countries view the Latin cross is of

no moment.

Further, a Latin cross differs from other religious monuments, such as the Ten

Commandments or the motto aIn God We Trust.a Those symbols are well known as

being tied to our Nationas history and government, and courts have thus upheld their

public display. See, e.g., Van Orden, 545 U.S. at 688 (noting the secular role of the Ten

Commandments in American history); Lambeth, 407 F.3d at 271a72 (acknowledging the

ties between American history and the motto aIn God We Trusta). Appellees have not

sufficiently demonstrated that the Latin cross has a similar connection.

b.

History of the Cross

Though the history of the Latin cross favors Appellants, the history of the

particular Cross before us does not clearly support one party over the other. On the one

hand, the initial donors to the memorial fund signed a pledge professing a belief in God,

and the Cross has been the scene of Christian activities, such as Sunday worship services

and group prayer at invocations and benedictions.

On the other hand, private

organizations raised money to erect the Cross, it has a scattered history of religious use,

and Other Intoxicating Choices: Official State Symbol Adoption, 41 N. Ky. L. Rev. 1, 5a

6 (2014); Jennifer Iles, In Remembrance: The Flanders Poppy, 13 Mortality 201 (2008)

(discussing the history of the poppy and its status as a symbol of remembrance).

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and it has primarily hosted veteran-focused ceremonies. Thus, when viewed through the

lens of not only Lemon, but also of Van Orden, the circumstances surrounding the

Crossas placement admittedly point to a semisecular history. See Van Orden, 545 U.S. at

701.

It is also true that the Cross has stood unchallenged for 90 years, which Appellees

argue reinforces its secular effect. See Van Orden, 545 U.S. at 702. But that argument is

too simplistic. In this case, it cannot be said that athe longer the violation, the less

violative it becomes.a Gonzales, 4 F.3d at 1422 (rejecting the argument that nearly 40

years without challenging a crucifix reinforced its secular effect). 11 Perhaps the longer a

violation persists, the greater the affront to those offended. The Crossas history therefore

does not definitively aid either side in the analysis.

11

Of note, a person who dared bring a challenge to the Cross for much of those 90

years would have faced possible rebuke. For example, atheists were forbidden from

holding public office until the Supreme Courtas intervention in the 1960as. In 1959, the

Governor of Maryland appointed Roy Torcaso as a Notary Public, but the Secretary of

State of Maryland refused to issue the commission because Torcaso, an atheist, would not

declare a belief in the existence of god. See Appellantas Br. 4; Torcaso v. Watkins, 367

U.S. 488 (1961). The Maryland Constitution provides, aNo religious test ought to be

required as a qualification for any office of profit or trust in this state other than a

declaration of belief in the existence of God.a The Supreme Court deemed the clause

unconstitutional declaring that Maryland had aset[] up a religious test which was

designed to and, if valid, does bar every person who refuses to declare a belief in God

from a public office of profit or trust in Maryland.a Torcaso, 367 U.S. at 489 (internal

quotation marks omitted). More than 50 years later, the constitution still contains the

offending provision. See Md. Const. Decl. of Rts. art. 37.

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c.

Secular Elements

Admittedly, the Cross contains a few secular elements. As support for their

position, Appellees point to the plaque at the base of the Cross that contains the names of

the 49 soldiers from Prince Georgeas County whose lives were lost in World War I; the

Legion symbol; the words avalor,a aendurance,a acourage,a and adevotiona inscribed on

its base; an American flag flying in its vicinity; and its location in the Veterans Memorial

Park.

Appellees maintain that the plaque and symbols diminish any government

endorsement of religion.

But the sectarian elements easily overwhelm the secular ones. 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, the tallest of which is

only ten feet tall and located approximately 200 feet from the Cross.

The other

monuments composing the Veterans Memorial Park are anywhere from 200 feet away to

a half-mile away. The immense size and prominence of the Cross necessarily aevokes 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.a

Trunk, 629 F.3d at 1116 n.18 (citation omitted).

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In addition, the Cross is not located in an area where one could easily park, walk

to the Cross, and examine the plaque. 12 Rather, the Cross is located in a high-traffic area,

and passers-by would likely be unable to read the plaque, particularly given its location

on only one side of the Cross, 13 and the fact that both the plaque and the American

Legion symbol are badly weathered, not to mention that the American Legion symbol is

small in comparison to the overall size of the Cross. We also cannot ignore the American

Legionas affiliation with Christianity, as gleaned from its prayer manuals and the aFour

Pillars of the American Legion.a J.A. 1469. 14 And, when we consider the physical

setting of the Cross pursuant to Van Orden, Appelleesa arguments are equally unavailing.

See 545 U.S. at 702.

The Crossas location on public property at a busy traffic

intersection, the small size and scattered locations of the surrounding monuments, plus

12

Although there may be parking available in the vicinity of the Cross, as well as a

walkway to the Cross, realistically, the general public may not easily or readily access the

Cross. In fact, Appellees admitted at oral argument that pedestrians attending ceremonies

held at the Cross accessed the site primarily with help from police officers guiding

pedestrians through the intersection and highway. See Oral Argument at 25:00a26:30,

Am. Humanist Assoc. v. Maryland-Natal Capital Park & Planning Comman, No. 15-2597,

http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments (Dec. 7, 2016).

And, after all, the primary reason the Commission took over the maintenance of the Cross

was for safety reasons, given its location in the middle of a busy highway intersection.

13

The plaqueas location on one side of the Cross makes it visible, if at all, only to

those traveling on a small portion of the busy highway. See J.A. 1891 (photograph of the

weathered plaque); see also Appendix (attached).

14

For example, to the exclusion of other religions, each Legion chapter has a

chaplain, and the Legion has a Christian prayer manual that is used at meetings,

invocations, and benedictions. Further, pursuant to the aFour Pillars of the American

Legion,a the Legion opposes attacks on apatriotica values. J.A. 1469. Such attacks

include prayer being aremoved from schools,a a[r]eferences to God [being] challenged,a

and attacks on the ainstitution of marriage.a Id. at 1469a70.

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the fact that bushes have obscured the plaque for much of its history, see, e.g., J.A. 34

(photograph of the Cross before this case was filed), all point to a violative display. See

Am. Atheists, Inc. v. Davenport, 637 F.3d 1095, 1121 (10th Cir. 2010) (aThe fact that the

[12-foot tall] cross includes biographical information about [a] fallen trooper does not

diminish the governmental message endorsing Christianity.

This is especially true

because a motorist driving by one of the memorial crosses at 55-plus miles per hour may

not notice, and certainly would not focus on, the biographical information.a).

Thus, we conclude that the historical meaning and physical setting of the Cross

overshadows its secular elements. Other courts presented with similar situations have

concluded likewise. See, e.g., Trunk, 629 F.3d at 1123 (concluding a 43-foot Latin cross,

though purporting to serve as a war memorial, overshadowed its secular aspects, which

included a plaque and 2,100 commemorative bricks); Gonzales, 4 F.3d at 1422a23

(determining that an 18-foot wooden crucifix advanced religion, despite containing a

plaque dedicating it to veterans, because the plaque was obscured); Smith, 895 F.2d at

958 (concluding a crA"che 15 on government property violated the Establishment Clause in

part because a plaque stating its private sponsorship was arelatively small . . . in relation

to the wholea display, thus amitigat[ing] [the plaqueas] valuea).

According to the dissent, our analysis bases the unconstitutionality of the Cross

apredominantly on the size of the cross,a without fairly weighing its aappearance,

15

A crA"che is aa visual representation of the scene in the manger in Bethlehem

shortly after the birth of Jesus, as described in the Gospels of Luke and Matthew.a Cty.

of Allegheny, 492 U.S. at 580 (footnote omitted).

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context, and factual background.a Post at 42 (emphasis omitted). This is not accurate.

Although we are of the opinion that the size of a religious display does matter, we have

also carefully considered the other factors required by Lemon and Van Orden. See Part

IV.C.2.a (analyzing context and meaning); Part IV.C.2.b (factual background and

history); Part IV.C.2.c (appearance). We are confident that we have fully complied with

our aconstitutional directive.a Post at 42.

d.

Reasonable Observer

Considering the factors above, we conclude that a reasonable observer would

fairly understand the Cross to have the primary effect of endorsing religion. We do not

disagree with the dissentas characterization of the areasonable observera as someone who

is not just an aordinary individuala but aaware of the history and context of the

community and forum in which the religious display appears.a Post at 43a44 (internal

quotation marks omitted); see Lambeth, 407 F.3d at 271a72 (quoting Good News Club,

533 U.S. at 119 (citation omitted)). In fact, Appellees at oral argument reaffirmed that

the reasonable observer is aware of the entire context and history of the Cross, spanning

from its origin to the present. See Oral Argument at 18:04a19:00, Am. Humanist Assoc.

v.

Maryland-Natal

Capital

Park

&

Planning

Comman,

No.

15-2597,

http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments (Dec. 7, 2016).

Accordingly, a reasonable observer would know that the Cross is dedicated to 49

World War I veterans and that veteran services occur at the Cross.

But, more

importantly, a reasonable observer would also know that the private organizers pledged

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devotion to faith in God, and that same observer knows that Christian-only religious

activities have taken place at the Cross. No party has come forward with any evidence to

the contrary. Although the reasonable observer may recognize that the Cross is located in

the Veterans Memorial Park, such reasonable observer also could not help but note that

the Cross is the most prominent monument in the Park and the only one displaying a

religious symbol.

Further, the reasonable observer would know that a Latin cross

generally represents Christianity. These factors collectively weigh in favor of concluding

that the Cross endorses Christianity -- not only above all other faiths, but also to their

exclusion.

The Commission and supporting amici equate the Cross to the crosses in Arlington

National Cemetery and similar locations. They raise concerns that siding with Appellants

here would jeopardize other memorials across the Nation displaying crosses, laying waste

to such memorials nationwide. Any such concern is misplaced. Establishment Clause

cases are fact-specific, and our decision is confined to the unique facts at hand. See

McCreary Cty. v. ACLU, 545 U.S. 844, 867a68 (2005) (recognizing the relevant inquiry

is based on the specific facts before the Court); Van Orden, 545 U.S. at 700

(acknowledging the afact-intensivea nature of religious display cases); Card, 520 F.3d at

1014; Staley, 485 F.3d at 309; OaConnor v. Washburn Univ., 416 F.3d 1216, 1222 (10th

Cir. 2005).

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In any event, Arlington National Cemetery is a designated area for

commemorating and memorializing veterans who have passed away. 16 The crosses there

are much smaller than the 40-foot tall monolith at issue here.

And, significantly,

Arlington National Cemetery displays diverse religious symbols, both as monuments and

on individual headstones. 17 Contrast that with the Cross here. There are no other

religious symbols present on the Cross or in the entirety of the Veterans Memorial Park.

Christianity is singularly -- and overwhelmingly -- represented. Therefore, the second

prong of Lemon is violated.

3.

Excessive Entanglement

We turn now to the third prong of the Lemon test -- whether the government

display creates aan excessive entanglement between government and religion.a Lambeth,

407 F.3d at 272a73 (internal quotation marks omitted). Excessive entanglement with

religion ais a question of kind and degree.a Lynch, 465 U.S. at 684. Such entanglement

may include apervasive monitoring or other maintenance by public authorities.a

Lambeth, 407 F.3d at 273 (citations omitted). Spending public funds, though a factor in

the analysis, is not necessary for a plaintiff to satisfy the entanglement prong. See

16

It must be made clear that we are not deciding or passing judgment on the

constitutionality of Arlington National Cemeteryas display of Latin crosses. Rather, we

are merely distinguishing the facts at hand from those displayed at other places of

commemoration.

17

Images of such headstones are attached in the appendix.

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Constangy, 947 F.2d at 1152. Indeed, excessive entanglement may lie simply where the

governmentas entanglement has the effect of advancing or inhibiting religion.

See

Agostini v. Felton, 521 U.S. 203, 232a33 (1997).

We hold 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.

See

Bowen v. Kendrick, 487 U.S. 589, 623 (1988) (OaConnor, J., concurring) (a[A]ny use of

public funds to promote religious doctrines violates the Establishment Clause.a

(emphasis omitted)). 18 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 display aggrandizes the Latin cross in a manner that says to any reasonable

observer that the Commission either places Christianity above other faiths, views being

American and Christian as one in the same, or both. Therefore, the third prong of Lemon

is also violated. We note, however, that because the Cross is unconstitutional under the

18

The dissentas view to the contrary is only based on its differing views of the

Cross -- as a ahistorical monumenta rather than promotion of a religious doctrine in the

form of a religious symbol. Post at 48. For the reasons explained supra, the Cross

embodies promotion of a religious doctrine, Christianity, and therefore, Justice

OaConnoras statement is directly applicable.

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effect prong, the excessive entanglement prong here merely provides an alternative

indicator of the Crossas unconstitutionality.

4.

Conclusion

The Commissionas display of the Cross fails the second and third prongs of

Lemon, and the Van Orden factors are unsupportive of Appelleesa position in this case.

The display and maintenance of the Cross violates the Establishment Clause.

V.

For the foregoing reasons, the judgment of the district court is

REVERSED AND REMANDED. 19

19

Upon remand, the parties should note that this opinion does not presuppose any

particular result (i.e., removing the arms or razing the Cross entirely); rather, the parties

are free to explore alternative arrangements that would not offend the Constitution.

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APPENDIX

(J.A. 34) 20

20

A photograph of the Cross prior to the filing of this case.

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(J.A. 1098) 21

21

A photograph of the Cross from 2014 prior to the filing of this case.

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(J.A. 1891) 22

(Supp. J.A. 2) 23

22

A photograph of the weathered plaque located on the base of the Cross.

23

An overhead image of the Veterans Memorial Park. The Cross is located

slightly to the left of center, titled aWWI Memorial.a

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As referenced in footnote 17, images of headstones in Arlington National Cemetery

adorned with diverse religious symbols, identified from top left to bottom right: Soka

Gakkai, Christianity, Buddhism, Wicca, Islam, Catholicism, United Church of Christ,

Judaism, and Atheism. Arlington National Cemetery,

https://pbs.twimg.com/media/CUa2t63VEAEoIfE.jpg.

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GREGORY, Chief Judge, concurring in part and dissenting in part:

I agree with the majorityas holding that Appellants have standing under 42 U.S.C.

ASS 1983 to bring this action for a violation of the Establishment Clause. But I disagree

with the majorityas ultimate conclusion that the display and maintenance of the war

memorial in this case violates the Establishment Clause. I therefore respectfully dissent

in part.

I.

The Establishment Clause provides that aCongress shall make no law respecting

an establishment of religion.a U.S. Const. amend. I. To properly understand and apply

the Establishment Clause, it must be viewed ain the light of its history and the evils it was

designed forever to suppress.a Everson v. Bd. of Educ., 330 U.S. 1, 14a15 (1947). The

early colonization of America was a time marked with religious persecution.

Immigrating settlers fled religious suppression in Europe only to be met with similar

treatment in America. a[M]en and women of varied faiths who happened to be in a

minority in a particular locality were persecuted because they steadfastly persisted in

worshipping God only as their own consciences dictated.a Id. at 10. Those regarded as

nonconformists were required ato support government-sponsored churches whose

ministers preached inflammatory sermons designed to strengthen and consolidate the

established faith by generating a burning hatred against dissenters.a Id.

The Establishment Clause was intended to combat the practice of acompel[ling

individuals] to support and attend government favored churches.a Id. at 8; accord Myers

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v. Loudoun Cty. Pub. Sch., 418 F.3d 395, 402 (4th Cir. 2005). The Clauseas historical

setting reveals that a[i]ts first and most immediate purpose rested on the belief that a

union of government and religion tends to destroy government and to degrade religion.a

Engel v. Vitale, 370 U.S. 421, 431 (1962). The realization of its goal meant that the

government must aaneither engage in nor compel religious practices,a that it must aeffect

no favoritism among sects or between religion and nonreligion,a and that it must awork

deterrence of no religious belief.aa Van Orden v. Perry, 545 U.S. 677, 698 (2005)

(Breyer, J., concurring) (plurality opinion) (quoting Abington School Dist. v. Schempp,

374 U.S. 203, 305 (1963) (Goldberg, J., concurring)).

But the Clause does not require the government ato purge from the public spherea

any reference to religion. Id. at 699. aSuch absolutism is not only inconsistent with our

national traditions, but would also tend to promote the kind of social conflict the

Establishment Clause seeks to avoid.a Id. (citations omitted). While neutrality may be

the atouchstonea of the Establishment Clause, it more so serves as a asense of directiona

than a determinative test. McCreary Cty. v. Am. Civil Liberties Union, 454 U.S. 844

(2005). We cannot view neutrality as some sort of abrooding and pervasive devotion to

the secular and a passive, or even active, hostility to the religious.a Schempp, 374 U.S. at

306 (Goldberg, J., concurring). Thus, in reviewing the challenged war memorial, this

Court must seek general rather than absolute neutrality. We do so by engaging in the

three-factor analysis delineated in Lemon v. Kurtzman (the aLemon testa), which requires

that the memorial have a secular purpose; have a principal or primary effect that neither

advances, inhibits, nor endorses religion; and not foster aan excessive government

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entanglement with religion.a 403 U.S. 602, 612a13 (1971). The memorial amust satisfy

each of the Lemon testas three criteriaa to pass constitutional muster. Lambeth v. Bd. of

Commars of Davidson Cty., 407 F.3d 266, 269 (4th Cir. 2005) (citing Mellen v. Bunting,

327 F.3d 355, 367 (4th Cir. 2003)).

II.

A.

I will briefly reiterate the operative facts. In Bladensburg, Maryland, in a median

at the intersection of Maryland Route 450 and U.S. Route 1, stands a war memorial

consisting of a forty-foot-tall concrete Latin cross (the aMemoriala). The Memorial and

the median are currently owned by Appellee Maryland-National Capital Park and

Planning Commission (the aCommissiona).

Intervenor-Appellee American Legionas

symbol is displayed in the middle of the cross on both faces. The cross sits on a base and

includes a plaque that lists the names of the forty-nine Prince Georgeas County residents

who died in World War I. J.A. 1891. The plaque also states, aTHIS MEMORIAL

CROSS DEDICATED TO THE HEROES OF PRINCE GEORGEaS COUNTY

MARYLAND WHO LOST THEIR LIVES IN THE GREAT WAR FOR THE LIBERTY

OF THE WORLD,a and includes a quotation from President Woodrow Wilson. Id.

Also, each face of the base is inscribed with one of four words:

aVALOR,a

aENDURANCE,a aCOURAGE,a and aDEVOTION.a J.A. 1963.

In 1918, a group of private citizens led the charge to construct and finance the

Memorial. The donors signed a pledge stating that they, atrusting in God, the Supreme

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Ruler of the universe,a pledged their faith in the forty-nine war dead, whose spirits

guided them athrough life in the way of godliness, justice, and liberty.a J.A. 1168. The

group also circulated a fundraising flyer stating,

Here, those who come to the Nationas Capital to view the wonders of its

architecture and the sacred places where their laws are made and

administered may, before this Cross, rededicate[] themselves to the

principles of their fathers and renew the fires of patriotism and loyalty to

the nation which prompted these young men to rally to the defense of the

right. And here 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.

J.A. 2303.

A groundbreaking ceremony was held for the Memorial and for Maryland Route

450 (then known as the National Defense Highway) in late 1919. Several local officials

spoke about the fallen soldiers and how both the Memorial and highway would

commemorate their bravery and sacrifice. But the private group ultimately failed to raise

enough money to construct the Memorial and abandoned the project. The local post of

the American Legion, a congressionally chartered veterans service organization, then

took up the task and completed the Memorial on July 25, 1925. That day, the post held a

ceremony which included multiple speeches regarding the Memorialas representation of

the men who died fighting for this country and an invocation and benediction delivered

by local clergymen.

Over time, additional monuments honoring veterans were built near the Memorial

(known as the aVeterans Memorial Parka). Because the Memorial sits in the middle of a

median and is separated by a busy highway intersection, the closest additional monument

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is about 200 feet away. Since the Memorialas completion, numerous events have been

hosted there to celebrate Memorial Day, Veterans Day, the Fourth of July, and the

remembrance of September 11th. These ceremonies usually include an invocation and

benediction, but the record demonstrates that only three Sunday religious services were

held at the Memorialaall of which occurred in August 1931. J.A. 347.

Due to increasing traffic on the highway surrounding it, the Commission acquired

the Memorial and the median where it is located from the American Legion in March

1961. Since that time, the Commission has spent approximately $117,000 to maintain

and repair the Memorial. In 2008, it set aside an additional $100,000 for renovations, of

which only $5,000 has been spent as of 2015. J.A. 562a65. On February 25, 2014, more

than fifty years after the Memorial passed into state ownership, Appellants initiated this

suit against the Commission under 42 U.S.C. ASS 1983 alleging a violation of the

Establishment Clause.

B.

By concluding that the Memorial violates the Establishment Clause, the majority

employed the Lemon test awith due consideration given to the factors outlined in Van

Orden.a Maj. Op. at 16. In Van Orden, a plurality of the Supreme Court determined that

the Lemon test was not useful when evaluating a apassive monument.a 545 U.S. at 686.

Instead, the Courtas analysis was adriven both by the nature of the monument and by our

Nationas history.a Id. As the majority recognizes, Justice Breyeras concurrence is the

controlling opinion in Van Orden. Maj. Op. at 14. Justice Breyer states that the Courtas

Establishment Clause tests, such as Lemon, cannot readily explain the Clauseas tolerance

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of religious activities in aborderline cases,a as there is ano single mechanical formula that

can accurately draw the constitutional line in every case.a Van Orden, 454 U.S. at 699a

700 (Breyer, J., concurring). aIf the relation between government and religion is one of

separation, but not of mutual hostility and suspicion, one will inevitably find difficult

borderline cases.a

Id. at 700.

Instead of applying Lemon to the challenged Ten

Commandments display, Justice Breyer exercised his alegal judgmenta and evaluated the

context of the display and how the undeniably religious text of the Commandments was

used. Id. at 700a04. His concurrence, however, also noted that Lemon provides a auseful

guidepost[]aand might well lead to the same resultaafor ano exact formula can dictate

a resolution to such fact-intensive cases.a Id. at 700.

Relying on Lemon, and drawing guidance from Van Orden, the majority

determined that the Commission articulated a legitimate secular purpose for displaying

the Memorial. Nevertheless, the majority concluded that the Memorial failed Lemonas

second and third factors, finding that a reasonable observer would conclude that the

Memorial has the primary effect of endorsing religion and the Commissionas

maintenance of the Memorial constitutes excessive entanglement with religion. In my

view, the majority misapplies Lemon and Van Orden to the extent that it subordinates the

Memorialas secular history and elements while focusing on the obvious religious nature

of Latin crosses themselves; constructs a reasonable observer who ignores certain

elements of the Memorial and reaches unreasonable conclusions; and confuses

maintenance of a highway median and monument in a state park with excessive religious

entanglement.

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III.

Because Appellants do not challenge the district courtas finding that the

Commission has demonstrated a secular purpose for displaying and maintaining the

Memorial (the first Lemon factor), I will discuss in turn the majorityas evaluation of the

second and third Lemon factorsawhether the Memorial has the primary effect of

advancing or inhibiting religion and whether the government is excessively entangled

with religion.

A.

Under Lemonas second factor, we must determine awhether 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.a Lambeth, 407 F.3d

at 271. This reasonable observer inquiry arequires the hypothetical construct of an

objective observer who knows all of the pertinent facts and circumstances surrounding

the [display] and its placement.a Salazar v. Buono, 559 U.S. 700, 721 (2010) (plurality

opinion).

We should not ask awhether there is any person who could find an

endorsement of religion, whether some people may be offended by the display, or

whether some reasonable person might think the State endorses religion.a Capitol Square

Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (OaConnor, J., concurring)

(internal quotation marks omitted).

Instead, we must determine awhether . . . the

displayas principal or primary effect is to advance or inhibit religion; or, put differently,

whether an informed, reasonable observer would view the display as an endorsement of

religion.a Lambeth, 407 F.3d at 272.

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It is undeniable that the Latin cross is the apreeminent symbol of Christianity.a

Maj. Op. at 18. But we must be careful not to afocus exclusively on the religious

componenta of a display, as that awould inevitably lead to its invalidation under the

Establishment Clause.a Lambeth, 407 F.3d at 271 (quoting Lynch v. Donnelly, 465 U.S.

668, 680 (1984)). Indeed, the Supreme Court ahas consistently concluded that displays

with religious contentabut also with a legitimate secular useamay be permissible under

the Establishment Clause.a Id. (citing Cty. of Allegheny v. Am. Civil Liberties Union,

492 U.S. 573, 579 (1989)). A reasonable observer would be aware that the cross is anot

merely a reaffirmation of Christian beliefs,a for it is aoften used to honor and respect

those whose heroic acts, noble contributions, and patient striving help secure an honored

place in history for this Nation and its people.a Buono, 559 U.S. at 721.

Despite the religious nature of the Latin cross, a reasonable observer must also

adequately consider the Memorialas physical setting, history, and usage. The Memorial

was created to commemorate the forty-nine soldiers who lost their lives in World War I,

as explicitly stated on the plaque attached to its base.

See J.A. 1891 (aTHIS

MEMORIAL CROSS DEDICATED TO THE HEROES OF PRINCE GEORGEaS

COUNTY MARYLAND WHO LOST THEIR LIVES IN THE GREAT WAR FOR THE

LIBERTY OF THE WORLD.a). The plaque also includes a quotation from President

Woodrow Wilson stating, aThe 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.a

Id. Each face of the cross includes the American Legion seal and each face of the base is

inscribed with one of four words: aVALOR,a aENDURANCE,a aCOURAGE,a and

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aDEVOTION.a J.A. 1963. The Memorial has functioned as a war memorial for its

entire history, and it sits among other secular monuments in Veterans Memorial Park,

though it is separated from the other monuments by intersecting highways.

The majority concludes that the size of the Latin cross making up the Memorial

overwhelms these secular elements.

In the majorityas view, the Memorial is

unconstitutional based predominantly on the size of the cross, and neither its secular

features nor history could overcome the presumption. But such a conclusion is contrary

to our constitutional directive. We must fairly weigh the appearance, context, and factual

background of the challenged display when deciding the constitutional question. See

Lynch, 465 U.S. at 679a80; Cty. of Allegheny, 492 U.S. at 598a600.

Although a

reasonable observer would properly notice the Memorialas large size, she would also take

into account the plaque, the American Legion symbol, the four-word inscription, its

ninety-year history as a war memorial, and its presence within a vast state park dedicated

to veterans of other wars. Would the majorityas version of a reasonable observer be

satisfied and better equipped to evaluate the Memorialas history and context if the cross

were smaller? Perhaps if it were the same size as the other monuments in the park?

Though Establishment Clause cases require a fact-intensive analysis, we must bear in

mind our responsibility to provide the government and public with notice of actions that

violate the Constitution. What guiding principle can be gleaned from the majorityas

focus on the crossas size? Understandably, the majorityas decision would lead to per se

findings that all large crosses are unconstitutional despite any amount of secular history

and context, in contravention of Establishment Clause jurisprudence.

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The majority also makes much of the Memorialas isolation from the other

monuments in Veterans Memorial Park, as it sits in the median of a now busy highway,

making it difficult to access. But a reasonable observer would note that the Memorial

was placed there as part of the concurrent creation of the National Defense Highway to

commemorate the soldiers of World War I, not as a means of endorsing religion. And,

though Veterans Memorial Park does not include any other religious symbols as

memorials, there is no evidence that the state formally foreclosed the possibility of

erecting any other religious symbol. Also, the reasonable observer would note that the

Memorialas physical setting does not lend itself to any religious worship. Van Orden,

545 U.S. at 702 (stating that religious displayas location in large park containing other

monuments suggested alittle or nothing sacred,a as it illustrated residentsa historical

ideals and adid not readily lend itself to meditation or any other religious activitya).

Additionally, due to the Memorialas location, the majority explains that a

reasonable observer would not be able to easily examine the Memorialas secular

elements. Maj. Op. at 23. This is because the Memorial ais located in a high-traffic area

and passers-by would likely be unable to read the plaque,a which is small and badly

weathered. Id. at 23. However, the reasonable observeras knowledge is not alimited to

the information gleaned simply from viewing the challenged display.a Pinette, 515 U.S.

at 780a81 (OaConnor, J., concurring). That the average person in the community may

have difficulty viewing all of the secular elements of the Memorial while stuck in traffic

or driving at high speeds is of no consequence, for the reasonable observer ais not to be

identified with any ordinary individual, . . . but is rather a personification of a community

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ideal of reasonable behaviora who is adeemed aware of the history and context of the

community and forum in which the religious display appears.a Id. at 779a80 (internal

quotation marks and citations omitted).

Thus, the reasonable observeras ability to

consider these secular elements is by no means diminished.

Further, quoting Trunk v. City of San Diego, 629 F.3d 1099, 1116 n.18 (9th Cir.

2011), the majority states that the large size and isolation of the Memorial aevokes 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.a

Maj. Op. at 22. In Trunk, the Ninth Circuit considered a forty-three-foot free-standing

cross and veterans memorial erected in a state park. 629 F.3d at 1101. The court

evaluated the history of the Latin cross generally, its use as a war memorial, the history of

the particular war memorial at issue, and its physical setting. Id. at 1102a05, 1110a24.

The cross in Trunk had no secular elements; instead, it was unadorned and without any

physical indication that it was a war memorial until after litigation was initiated to

remove it. Id. at 1101a02; see also Smith v. Cty. of Albemarle, 895 F.2d 953, 958 (4th

Cir. 1990) (concluding that crA"che, unassociated with any secular symbols, prominently

displayed in front of government building, and unaccompanied by any other religious or

nonreligious displays, conveyed message of governmental endorsement of religion). The

court concluded that a reasonable observer would perceive the presence of the cross as

the federal governmentas endorsement of Christianity, due in part to its long history of

serving as a site of religious observance, with no indication of any secular purpose for

almost three decades. Id. at 1125.

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But here, the Memorial has always served as a war memorial, has been adorned

with secular elements for its entire history, and sits among other memorials in Veterans

Memorial Park.

The Memorialas predominant use has been for Veterans Day and

Memorial Day celebrations, although three religious services were conducted at the

Memorial nearly ninety years ago. Also, the invocations and benedictions performed at

the annual veterans celebrations are not enough to cause a reasonable observer to

perceive the Memorial as an endorsement of Christianity in light of its overwhelmingly

secular history and context.

Further, guidance from Van Orden provides that the

Memorialas ninety-year existence and fifty-year government ownership without litigation

is a strong indication that the reasonable observer perceived its secular message. See 545

U.S. at 702a03 (stating that challenged monumentas presence on government property for

forty years provided determinative factor that it conveyed predominately secular

message). The Memorial stands at a busy intersection, yet this case is the first time the

Memorial has been challenged as unconstitutional. Those fifty years strongly suggest

athat few individuals, whatever their system of beliefs, are likely to have understood the

[Memorial] as amounting, in any significantly detrimental way, to a government effort

. . . primarily to promote religion over nonreligion,a or to aengage in,a acompel,a or deter

any religious practice or beliefs.

Id. at 702 (quoting Schempp, 374 U.S. at 305

(Goldberg, J., concurring)); see also Buono, 559 U.S. at 716 (aTime also has played its

role. [After] nearly seven decades[,] . . . the cross and the cause it commemorated had

become entwined in the public consciousness.a). This significant passage of time must

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factor into the Courtas analysis and ahelp[] us understand that as a practical matter of

degree [the Memorial] is unlikely to prove divisive.a Van Orden, 545 U.S. at 702.

With the foregoing facts, circumstances, and principles in mind, I conclude that a

reasonable observer would understand that the Memorial, while displaying a religious

symbol, is a war memorial built to celebrate the forty-nine Prince Georgeas County

residents who gave their lives in battle. Such an observer would not understand the effect

of the Commissionas display of the Memorialawith such a commemorative past and set

among other memorials in a large state parkato be a divisive message promoting

Christianity over any other religion or nonreligion. A cross near a busy intersection

aneed not be taken as a statement of governmental support for sectarian beliefs. The

Constitution does not oblige government to avoid any public acknowledgment of

religionas role in society. Rather, it leaves room to accommodate divergent values within

a constitutionally permissible framework.a

Buono, 559 U.S. at 718a19 (citations

omitted). We must be careful not to push the Establishment Clause beyond its purpose in

search of complete neutrality. a[U]ntutored devotion to the concept of neutrality can lead

to invocation or approval of results which partake not simply of that noninterference and

noninvolvement with the religious which the Constitution commands,a but of extreme

commitment to the secular, aor even active, hostility to the religious.a Van Orden, 545

U.S. at 699 (quoting Schempp, 374 U.S. at 306 (Goldberg, J., concurring)). Finding that

a reasonable observer would perceive the Memorial as an endorsement of Christianity

would require that we pursue a level of neutrality beyond our constitutional mandate. I

therefore conclude that the Memorial does not violate the second factor of the Lemon test.

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B.

The Lemon testas final factor asks whether the challenged display has created an

aexcessive entanglementa between government and religion. Lambeth, 407 F.3d at 272a

73. aThe kind of excessive entanglement of government and religion precluded by

Lemon is characterized by acomprehensive, discriminating, and continuing state

surveillance.aa Id. at 273 (quoting Lemon, 403 U.S. at 619). This inquiry is one of akind

and degree,a Lynch, 465 U.S. at 684, aand because some interaction between church and

state is inevitable, the Supreme Court has reaffirmed that the a[e]ntanglement must be

aexcessivea before it runs afoul of the Establishment Clause,aa Koenick v. Felton, 190

F.3d 259, 268 (4th Cir. 1999) (quoting Agostini v. Felton, 521 U.S. 203, 233 (1997)).

The majority concludes that the Memorial fosters excessive entanglement because

of the Commissionas ownership and maintenance of the Memorial.

But the

Commissionas maintenance of the Memorial and the land surrounding it could hardly be

considered the sort of state surveillance that Lemon intends to prohibit. See Lemon, 403

U.S. at 615a20 (concluding that challenged action excessively entangled state with

religion by requiring state to supplement salaries for teachers in parochial schools); see

also Mellen, 327 F.3d at 375 (determining that public universityas supper prayer violated

Lemonas third prong because school officials acomposed, mandated, and monitored a

daily prayera). Rather, the Commission 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.

There is no evidence that the Commission consults with any churches or

religious organizations to determine who may access the Memorial for events. Nor is

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there evidence that the Commission is required to be involved in any church-related

activities to maintain the Memorial.

Further, the majority observes that aany use of public funds to promote religious

doctrines violates the Establishment Clause.a Bowen v. Kendrick, 487 U.S. 589, 623

(1988) (OaConnor, J., concurring). But, in Agostini, the Supreme Court held that a

federally funded program that paid public school teachers to teach disadvantaged children

in parochial schools did not cause an excessive entanglement between church and state.

521 U.S. at 234a35. Likewise, the Commissionas use of $122,000 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.

I therefore conclude that the Memorial does not violate the third factor of the

Lemon test.

*

*

*

This Memorial stands in witness to the VALOR, ENDURANCE, COURAGE, and

DEVOTION of the forty-nine residents of Prince Georgeas County, Maryland awho lost

their lives in the Great War for the liberty of the world.a I cannot agree that a monument

so conceived and dedicated and that bears such witness violates the letter or spirit of the

very Constitution these heroes died to defend. Accordingly, I would affirm the district

courtas judgment.

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