Amicus Curiae Brief — The American Legion, et al., Petitioners v. American Humanist Association, et al.

Supreme Court briefDec 19, 2018

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NOS. 17-1717, 18-18

In the Supreme Court of the United States

THE AMERICAN LEGION, et al.,

Petitioners,

AMERICAN HUMANIST ASSOCIATION, et al.,

Respondents.

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION,

Petitioner,

AMERICAN HUMANIST ASSOCIATION, et al.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF JUSTICE AND FREEDOM FUND AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

James L. Hirsen

Counsel of Record

505 S. Villa Real Drive, Suite 208

Anaheim Hills, CA 92807

(714) 283-8880

james@jameshirsen.com

Deborah J. Dewart

620 E. Sabiston Drive

Swansboro, NC 28584-9674

(910) 326-4554

debcpalaw@earthlink.net

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . 1

INTRODUCTION AND

SUMMARY OF THE ARGUMENT . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

NO ONE HAS AN ABSOLUTE RIGHT TO

BE FREE OF OFFENSE IN GENERAL OR

RELIGION IN PARTICULAR. . . . . . . . . . . . 5

II.

THE

GOVERNMENT

NOT

ADVOCATING A MESSAGE OF ITS OWN.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. This case is not about a government

message. . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. A monument on public land does not

necessarily represent the government’s

own message. . . . . . . . . . . . . . . . . . . . . . . 12

C. The government may acknowledge the

nation’s religious heritage—including

Christianity. . . . . . . . . . . . . . . . . . . . . . . 15

D. The government may accommodate

religion. . . . . . . . . . . . . . . . . . . . . . . . . . . 18

III.

THE GOVERNMENT PRESERVES AND

RESPECTS A COMMEMORATIVE

MESSAGE CREATED BY PRIVATE

CITIZENS. . . . . . . . . . . . . . . . . . . . . . . . . . . 20

IV.

THIS COURT SHOULD CRAFT A TEST TO

BRING CLARITY TO CASES INVOLVING

RELIGIOUS SYMBOLISM ON PUBLIC

PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iii

TABLE OF AUTHORITIES

Cases

ACLU v. Rabun Cty. Chamber of Commerce, Inc.,

698 F.2d 1098 (11th Cir. 1983) . . . . . . . . . . . . . . 7

Am. Atheists, Inc. v. Duncan,

637 F.3d 1095 (10th Cir. 2010) . . . . . . . . . . 22, 24

Am. Atheists, Inc. v. Port Auth.,

760 F.3d 227 (2d Cir. 2014) . . . . . . . . . . . . . . . . 17

Am. Humanist Ass’n v. Maryland-National Capital

Park & Planning Comm’n,

874 F.3d 195 (4th Cir. 2017) . . . . . . . . . . . passim

Bd. of Ed. of Westside v. Mergens,

496 U.S. 226 (1990) . . . . . . . . . . . . . . . . . . . . . . 11

Buono v. Kempthorne,

527 F.3d 758 (9th Cir. 2008) . . . . . . . . . . . . . . . . 4

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753 (1995) . . . . . . . . . . . . . . . . 5, 8, 9, 14

Card v. City of Everett,

520 F.3d 1009 (9th Cir. 2008) . . . . . . . . . . . . . . 21

Church of Holy Trinity v. United States,

143 U.S. 457 (1892) . . . . . . . . . . . . . . . . . . . . . . 16

County of Allegheny v. American Civil Liberties

Union, Greater Pittsburgh Chapter,

492 U.S. 573 (1989) . . . . . . . . . . . . . . . . . . . . . . . 6

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004) . . . . . . . . . . . . . . . . . . 2, 5, 9, 18

Engel v. Vitale,

370 U.S. 421 (1962) . . . . . . . . . . . . . . . . . . . . . . 15

Everson v. Board of Education of Ewing,

330 U. S. 1 (1947) . . . . . . . . . . . . . . . . . . . . . . . . 20

Lee v. Weisman,

505 U.S. 577 (1992) . . . . . . . . . . . . . . . . . . . . . . . 7

Lemon v. Kurzman,

403 U.S. 602 (1974) . . . . . . . . . . . . . . . . . . . . . . 20

Lynch v. Donnelly,

465 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . passim

Marsh v. Chambers,

463 U.S. 783 (1983) . . . . . . . . . . . . . . . . . 6, 16, 17

McCreary County v. ACLU,

545 U.S. 844 (2005) . . . . . . . . . . . . . . . . . . . . . 6, 8

McCollum v. Board of Education,

333 U.S. 203 (1948) . . . . . . . . . . . . . . . . . . . . . . 18

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) . . . . . . . . . . . . . . . . . . passim

Salazar v. Buono,

559 U.S. 700 (2010) . . . . . . . . . . . . . . . . . . passim

Santa Fe Independent School Dist. v. Doe,

530 U.S. 290 (2000) . . . . . . . . . . . . . . . . . . . . 2, 11

School Dist. of Abington Township v. Schempp,

374 U.S. 203 (1963) . . . . . . . . . . . . . . . . . . . . . . 15

Separation of Church & State Comm. v. City of

Eugene,

93 F.3d 617 (9th Cir. 1996) . . . . . . . . . . . . . . . . 14

Sherman v. Community Consolidated School

District 21 of Wheeling Township,

980 F.2d 437 (7th Cir. 1992) . . . . . . . . . . . . . . . . 6

Suhre v. Haywood Cty.,

131 F.3d 1083 (4th Cir. 1997) . . . . . . . . . . . . . . . 7

Town of Greece v. Galloway,

134 S. Ct. 1811 (2014) . . . . . . . . . . . . . . . . . 16, 17

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

137 S. Ct. 2012 (2017) . . . . . . . . . . . . . . . . . . . . 20

Utah Highway Patrol Ass’n v. Am. Atheists, Inc.,

565 U.S. 994 (2011) . . . . . . . . . . . . . . . . . . . . 8, 12

Van Orden v. Perry,

545 U.S. 677 (2005) . . . . . . . . . . . . . . . . . . passim

Vidal v. Phila.,

43 U.S. 127 (1844) . . . . . . . . . . . . . . . . . . . . . . . 16

Wallace v. Jaffree,

472 U.S. 38 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 3

Walz v. Tax Commission,

397 U.S. 664 (1970) . . . . . . . . . . . . . . . . . . . . . . 18

Zorach v. Clauson,

343 U.S. 306 (1952) . . . . . . . . . . . . . . . . . 5, 15, 18

Other Authorities

David E. Bernstein, Defending the First Amendment

From Antidiscrimination, 82 N.C. L. Rev. 223

(2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Emily Fitch, An Inconsistent Truth: The Various

Establishment Clause Tests As Applied in the

Context of Public Displays of (Allegedly)

“Religious” Symbols and Their Applicability

Today, 34 N. Ill. U. L. Rev. 431 (2014) . . . . . . . 11

INTEREST OF AMICUS CURIAE1

Justice and Freedom Fund, as amicus curiae,

respectfully urges this Court to reverse the decision of

the Fourth Circuit.

Justice and Freedom Fund (“JFF”) is a California

non-profit, tax-exempt corporation formed on

September 24, 1998 to preserve and defend the

constitutional liberties guaranteed to American

citizens, through education, legal advocacy, and other

means. JFF’s founder is James L. Hirsen, professor of

law at Trinity Law School and Biola University in

Southern California and author of New York Times

bestseller, Tales from the Left Coast, and Hollywood

Nation. Mr. Hirsen is a frequent media commentator

who has taught law school courses on constitutional

law. Co-counsel Deborah J. Dewart is the author of

Death of a Christian Nation (2010) and holds a degree

in theology (M.A.R., Westminster Seminary, Escondido,

CA). JFF has made numerous appearances in this

Court as amicus curiae.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The Bladensburg WWI Memorial originated a

century ago with a committee of mothers whose 49 sons

had lost their lives in the First World War. These

women wanted to honor and preserve the memory of

The parties have consented to the filing of this brief. Amicus

curiae certifies that no counsel for a party authored this brief in

whole or in part and no person or entity, other than amicus, its

members, or its counsel, has made a monetary contribution to its

preparation or submission.

their sacrifice. A local chapter of the American Legion

joined them to complete the needed funding, and the

“Peace Cross” was constructed between 1919 and 1925

at the end of the National Defense Highway. The

soldiers’ names are engraved on a plaque, and the

words “valor, endurance, courage, and devotion” are

inscribed at the base of the monument.

It would be “ironic indeed” if the Constitution were

used to erase the memory of soldiers who died to

preserve the very liberties it guarantees, merely

because a well-recognized image of military sacrifice

resembles a religious symbol. Elk Grove Unified Sch.

Dist. v. Newdow, 542 U.S. 1, 44-45 (2004) (O’Connor, J.,

concurring); Lynch v. Donnelly, 465 U.S. 668, 686

(1984) (“It would be ironic . . . if the inclusion of a

single symbol of a particular historic religious event . . .

would so ‘taint’ the city’s exhibit as to render it

violative of the Establishment Clause.”). Neither

history nor case law mandates the Fourth Circuit’s

rigid application of the Establishment Clause. The

court ignores the history and context of the

Bladensburg WWI Memorial in an opinion that

“bristles with hostility” toward religion. Santa Fe

Independent School Dist. v. Doe, 530 U.S. 290, 318

(2000) (Rehnquist, C.J., dissenting). This Court has

consistently refused to adopt a simplistic, absolutist

approach to the Establishment Clause that would

undermine its objectives by invalidating every

government act that might incidentally confer some

benefit on religion. Lynch, 465 U.S. at 678. Here, the

Memorial was never intended to convey either a

government message or a religious message. The

Maryland-National Park Capital Park and Planning

Commission took title to the land and assumed

maintenance of the monument solely for purposes of

traffic safety. The Commission acted to preserve and

honor a commemorative message created decades

earlier by private citizens, not to convey or endorse a

religious message.

In America, there is a right to select any religious

faith—or none. Wallace v. Jaffree, 472 U.S. 38, 52-53

(1985) (“the individual freedom of conscience protected

by the First Amendment embraces the right to select

any religious faith or none at all”). The Constitution

protects conscience and mandates tolerance. But the

Establishment Clause does not require that the public

square be purged of all religious symbolism. Objectors

are free to disregard public acknowledgments of the

nation’s religious heritage but have no iron-clad right

to be free of all exposure to such references. Yet

Establishment Clause cases have granted “offended

observers” standing to challenge perceived government

endorsement, and judgments are then based on the

imaginations of the nebulous “reasonable observer.”

This chaotic jurisprudence jeopardizes the freedom of

state and local governments to acknowledge religion,

accommodate religion, preserve religious liberty, and

incorporate a religious symbol into a secular message—

such as the commemoration of fallen soldiers. A passive

monument does not bind the conscience or coerce

support for religion. Eliminating even nominal

recognition of the nation’s religious heritage is

exclusionary and even threatening to Americans who

treasure that heritage.

War memorials all across America utilize the cross

to symbolize the sacrifice of fallen soldiers, particularly

those who served in World War I. Examples include the

Argonne Cross Memorial and the Canadian Cross of

Sacrifice in Arlington National Cemetery, the French

Cross Monument in the Cypress Hill National

Cemetery, the Unknown Soldiers Monument in

Prescott National Cemetery, and the Wall of Honor at

the Pennsylvania Military Museum. Buono v.

Kempthorne, 527 F.3d 758, 765 n. 6 (9th Cir. 2008)

(O’Scannlion, J., dissenting). The National Park

Service manages sites that contain “thousands of

privately designed or funded commemorative objects,

including the Statue of Liberty, the Marine Corps War

Memorial (the Iwo Jima monument), and the Vietnam

Veterans Memorial.” Pleasant Grove City v. Summum,

555 U.S. 460, 471 (2009). All branches of the Nation’s

service utilize the cross as a symbol to honor and

memorialize the sacrifice of America’s veterans. The

Navy Cross, the Distinguished Service Cross (Army),

the Air Force Cross, and the Distinguished Flying

Cross are examples of the pervasive use of the cross in

military culture.

This Court should preserve the honor the Memorial

rightly accords to America’s veterans, rather than

affirming the Fourth Circuit’s strained application of

the Establishment Clause. This case is an opportunity

to craft an objective test, consistent with the nation’s

history and tradition, for passive public displays that

incorporate religious imagery with no coercion or

government intent to proselytize.

ARGUMENT

NO ONE HAS AN ABSOLUTE RIGHT TO

BE FREE OF OFFENSE IN GENERAL OR

RELIGION IN PARTICULAR.

Establishment Clause cases are often built on the

sensitivities of the “offended observer”—contrary to

basic principles of American freedom. No one can

escape offense. The Constitution “would betray its own

principles” if it “guarantee[d] citizens a right entirely

to avoid ideas with which they disagree.” Elk Grove v.

Newdow, 542 U.S. at 44 (O’Connor, J., concurring).

Exposure to unwelcome ideas is the price of preserving

American freedoms. Americans must “develop thicker

skin” in order “to preserve their civil liberties.” David

E. Bernstein, Defending the First Amendment From

Antidiscrimination, 82 N.C. L. Rev. 223, 245 (2003).

No one has an absolute right to be free from

exposure to religion. The Religion Clauses guarantee

the right to be free of government coercion but not the

right to avoid religion altogether. The First

Amendment itself endorses religion. Decades ago, this

Court found “no constitutional requirement which

makes it necessary for government to be hostile to

religion and to throw its weight against efforts to widen

the effective scope of religious influence.” Zorach v.

Clauson, 343 U.S. 306, 313-314 (1952). Religious

expression stands at “the core of the type of speech that

the First Amendment was designed to protect.” See

Capitol Square Review & Advisory Bd. v. Pinette, 515

U.S. 753, 760 (1995). The Framers would certainly

consider it a “bitter irony that the religious values they

designed those Clauses to protect have now become so

distasteful to this Court that if they constitute

anything more than a subordinate motive for

government action they will invalidate it.” McCreary

County v. ACLU, 545 U.S. 844, 902-903 (2005) (Scalia,

J., dissenting).

The irony is inescapable: Anything that smacks of

religion must acquire a secular component, or lose its

meaning through rote repetition, to survive the

Establishment Clause. Religious displays must be

buried among secular symbols (Van Orden v. Perry, 545

U.S. 677, 704 (2005); Lynch, 465 U.S. at 679-680).

Religious holidays must acquire a secular appeal.

Religious phrases—“In God We Trust” or “under God”

—must “los[e] through rote repetition any significant

religious content.” Lynch, 465 U.S. at 716-717

(Brennan, J., dissenting); Marsh v. Chambers, 463 U.S.

783, 818 (1983) (Brennan, J., dissenting) (suggesting

that these mottos are constitutional because “they have

lost any true religious significance”); County of

Allegheny v. American Civil Liberties Union, Greater

Pittsburgh Chapter, 492 U.S. 573, 631 (1989)

(O’Connor, J., concurring) (longstanding practices such

as legislative prayer have “largely lost their religious

significance over time”). The Framers would hardly

recognize the Constitution they drafted. Under this

modern logic, phrases like “in God we trust” or “under

God” would have initially been unconstitutional

“because they had not yet been rendered meaningless

by repetitive use.” Sherman v. Community

Consolidated School District 21 of Wheeling Township,

980 F.2d 437, 448 (7th Cir. 1992) (Manion, J.,

concurring). Regardless of the merits of this

development, the Latin cross has acquired an

established secondary meaning—military sacrifice—

and that is the meaning obviously intended and

conveyed by the Memorial. Yet the Fourth Circuit

found an Establishment Clause violation.

It is in this confused context that the “offended

observer” is granted standing to challenge a display

that “involves no coercion” and causes “no injury” other

than “offense at seeing the monument” while passing

by. Van Orden, 545 U.S. at 694 (Thomas, J.,

concurring). Respondents are persons who “faced

multiple instances of unwelcome contact with the

Cross.” Am. Humanist Ass’n v. Maryland-National

Capital Park & Planning Comm’n, 874 F.3d 195, 202

(4th Cir. 2017). Quoting itself, the Fourth Circuit found

that “unwelcome direct contact with a religious display

that appears to be endorsed by the state” is adequate

for standing. Suhre v. Haywood Cty., 131 F.3d 1083,

1086 (4th Cir. 1997). Unless religious artifacts are

hidden from public view, none are safe from the wrath

of the offended observer. See, e.g., ACLU v. Rabun Cty.

Chamber of Commerce, Inc., 698 F.2d 1098, 1108 (11th

Cir. 1983) (Latin cross was clearly visible from “the

porch of [plaintiff’s] summer cabin” and the roadway he

used to reach it). The offended observer’s “injury” is far

removed from the “coercion of religious orthodoxy and

of financial support by force of law and threat of

penalty” that characterized historical establishments.

Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J.,

dissenting). Offense is not tantamount to coercion.

Under the endorsement test, an “offended

observer’s” lawsuit is litigated through the lens of a

hypothetical “reasonable observer” whose perception

may be neither be accurate nor reasonable. This

observer is an imaginary construct “of indeterminate

religious affiliation” who supposedly “knows all the

facts and circumstances surrounding a challenged

display.” Van Orden, 545 U.S. at 696 (Thomas, J.,

concurring). Yet the description and level of knowledge

shift from case to case. It is not—or at least should not

be—“any person who could find an endorsement of

religion” or “some reasonable person” who might be

offended or “might think the State endorses religion.”

Am. Humanist Ass’n, 874 F.3d at 218 (Gregory, J.,

dissenting), quoting Pinette, 515 U.S. at 780 (O’Connor,

J., concurring) (internal quotation marks omitted). The

Fourth Circuit fashions an observer who “ignores

certain elements of the Memorial,” “reaches

unreasonable conclusions,” and confuses highway

maintenance with forbidden religious entanglement.

Am. Humanist Ass’n, 874 F.3d at 218 (Gregory, J.,

dissenting). It is troubling that a constitutional

violation hinges on “an observer’s potentially mistaken

belief that the government has violated the

Constitution, rather than on whether the government

has in fact done so.” Utah Highway Patrol Ass’n v. Am.

Atheists, Inc., 565 U.S. 994, 1004 n. 7 (2011) (Thomas,

J., dissenting from denial of certiorari). The legitimacy

of the government’s action easily turns on the

“misperception of an imaginary observer.” McCreary,

545 U.S. at 901 (2005) (Scalia, J., dissenting).

A reasonable observer of the Memorial should know

its context and history and that the Latin cross is

“often 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.” Am. Humanist Ass’n, 874 F.3d at 218

(Gregory, J., dissenting), quoting Salazar v. Buono, 559

U.S. 700, 721 (2010). Yet the Fourth Circuit adopts a

rigid per se rule that would exclude all cross-shaped

displays, regardless of history, context, or established

secondary meaning.

This Court has repeatedly rejected the proposition

that a “heckler’s veto” trumps all other observers. Elk

Grove v. Newdow, 542 U.S. at 35 (O’Connor, J.,

concurring). “There is always someone who, with a

particular quantum of knowledge, reasonably might

perceive a particular action as an endorsement of

religion.” Pinette, 515 U.S. at 780. The “offended

observer’s” subjective injury easily morphs into the

“hecker’s veto” this Court has rejected. Where decades

have passed without objection, a belated complaint

suggests the presence of a “hecker’s veto.”

• The creche at issue in Lynch failed to generate

political friction or divisiveness in the 40-year

history of Pawtucket’s Christmas celebration.

Lynch, 465 U.S. at 684.

• The Ten Commandments monuments in Van

Orden and Pleasant Grove City stood without

challenge or controversy for 40 years before a

single objection was raised. Van Orden, 545 U.S.

at 702 (Breyer, J., concurring); Pleasant Grove

City, 555 U.S. at 483 (Scalia, J., concurring).

• The Sunrise Rock memorial in Buono had stood

for over seven decades. Salazar v. Buono, 559

U.S. at 716.

The Fourth Circuit essentially allows the “heckler’s

veto” of an imaginary observer to trump more than nine

decades of peaceful history surrounding the Memorial.

II.

THE GOVERNMENT IS NOT ADVOCATING

A MESSAGE OF ITS OWN.

In 1961, the Commission took title to the memorial

monument and the land—not to advocate a government

message or endorse religion, but to ensure safety in the

middle of a busy traffic intersection. Am. Humanist

Ass’n, 874 F.3d at 201.

Even if there were a government message, and even

if that message implicated religion, the government

may acknowledge and accommodate religion. Examples

abound—military and prison chaplaincies, the national

motto and anthem, the Pledge, and various religious

proclamations. In some contexts, the government may

“speak” using a display with religious text or meaning

as part of a broader message—without violating the

Establishment Clause. Government museums, art

exhibits, libraries, and holiday displays all include

religious items without endorsing religious beliefs. The

benefit to any one faith or religion is too “indirect,

remote, or incidental” to be considered impermissible

endorsement or advancement. Lynch, 465 U.S. at 683.

Such “government speech” leaves Americans as free as

they were before.

The Establishment Clause “does not compel the

government to purge from the public sphere all that in

any way partakes of the religious.” Van Orden, 545

U.S. at 699 (Breyer, J., concurring). The Fourth Circuit

ruling violates this principle. It is time to reign in the

runaway Establishment Clause jurisprudence that

stifles religious expression and creates the very

hostility the Clause was intended to prevent. Removing

or mutilating the Memorial, merely because of its

outward similarity to a religious symbol, would be a

draconian solution dishonoring to the veterans it seeks

to honor and hostile to religion.

A. This case is not about a government

message.

“[I]t is important to distinguish between

governmental authorization . . . and governmental

advocacy.” Emily Fitch, An Inconsistent Truth: The

Various Establishment Clause Tests As Applied in the

Context of Public Displays of (Allegedly) “Religious”

Symbols and Their Applicability Today, 34 N. Ill. U. L.

Rev. 431, 455 (2014). The Memorial is a passive display

that creates no obligation even to acknowledge it. The

Commission does not advocate or endorse a message by

preserving the Memorial and authorizing its continued

presence on public land. The monument does not

convey a government message—and the message it does

communicate is not religious, but rather

commemorative.

The distinction between government and private

speech may be helpful, because the First Amendment

protects private religious expression but restricts

government speech. Bd. of Ed. of Westside v. Mergens,

496 U.S. 226, 250 (1990); Santa Fe, 530 U.S. at 302. In

Van Orden, the Establishment Clause challenge was

rejected even though “all the Justices agreed that

government speech was at issue.” Pleasant Grove City,

555 U.S. at 483 (Scalia, J., concurring). That case did

not require “a finding that the monument was only

‘private’ speech.” Id. Instead, the plurality identified

both historical meaning and religious significance.

Similarly, the Latin cross is a Christian symbol that

has acquired a secondary meaning as a war memorial.

This Court need not find the Memorial’s message

“private” in order to find it constitutional, nor does its

shape mandate invalidation as “government” speech

endorsing religion.

This Court’s decision in Pleasant Grove City, which

hinged on the distinction between government and

private speech, was litigated “in the shadow” of the

Establishment Clause. Pleasant Grove City, 555 U.S. at

482 (Scalia, J., concurring); see id. at 486 (Souter, J.,

concurring) (“litigated . . . with one eye on the

Establishment Clause”). Although the Establishment

Clause was not expressly at issue, it lurked beneath

the surface and sparked comments from several

concurring Justices. Pleasant Grove City warrants brief

discussion to consider how monuments convey meaning

and to clarify that it does not mandate a per se rule

that would invalidate all monuments on government

land with religious imagery (Sections IIB and III,

infra).

B. A monument on public land does not

necessarily represent the government’s

own message.

Monuments and other displays do not convey

meaning in the same way as the written or spoken

word. Interpretation can lead to unpredictable results,

especially in cases of religious symbolism. Under

existing precedent, a creche, a menorah, a Ten

Commandments display, or a cross on public property

“violates the Establishment Clause, except when it

does not.” Utah Highway Patrol, 565 U.S. at 1001,

1002, 1003 (Thomas dissenting from denial of

certiorari).

Monuments on government land are generally

presumed to be government speech, including those

commissioned and financed by the government, or

received as a donation and displayed to the public.

Pleasant Grove City, 555 U.S. at 470-471. But in

certain contexts—“[s]ectarian identifications on

markers in Arlington Cemetery come to mind”—there

is a common understanding that a display with

religious symbolism does not represent the

government’s chosen view. Id. at 487 (Souter, J.,

concurring). “And to recognize that is to forgo any

categorical rule at this point.” Id. The Fourth Circuit

disregards the ubiquity of the Latin cross as a timehonored war memorial symbol.

No one denies the place of the cross in the Christian

religion. But a monument may convey more than one

message, and the message perceived—by a government

donee or a “reasonable observer”—may not coincide

with the one intended by the sculptor or donor. The

Ten Commandments monument in Van Orden “ha[d]

a dual significance, partaking of both religion and

government.” Van Orden, 545 U.S. at 692. This mixedmessage phenomenon is particularly pronounced where

the monument contains no text. Pleasant Grove City.

555 U.S. at 475. Even when a monument “features the

written word” it may “be interpreted by different

observers in a variety of ways.” Id. at 474. It may not

be possible to identify any single message a structure

conveys; the creator’s intent may be quite different

from the understanding of a government entity that

later takes title. Id. at 476. The message “may also be

altered by the subsequent addition of other monuments

in the same vicinity” or the meaning may simply

change over time. Id. at 477.

A striking illustration of mixed messages is this

Court’s opinion in Pinette, 515 U.S. 753. The state

could not exclude a Klu Klux Klan cross a from holiday

display on Establishment Clause grounds. In his

concurring opinion, Justice Thomas highlights the

chasm between the Christian use of the cross and the

way the KKK “appropriated one of the most sacred of

religious symbols as a symbol of hate.” Id. at 770-771

(Thomas, J., concurring). See Separation of Church &

State Comm. v. City of Eugene, 93 F.3d 617, 626-627

(9th Cir. 1996) (O’Scannlain, J., concurring)

(“ironically” the will of voters who approved a cross for

“a benign purpose” is overruled, while the KKK

received constitutional protection for its “message of

hate”). The KKK hijacked one of Christianity’s primary

symbols for hateful purposes. In contrast, military

culture has appropriated the cross for honorable use as

a universal symbol of sacrifice. When properly viewed

in context, the military cross is no more an

endorsement of religion than the KKK’s cross.

Speech classification was the central issue in

Pleasant Grove City. Was the donated monument the

government’s own expression, or the donor’s private

speech? Pleasant Grove City, 555 U.S. at 467. The

public-private speech distinction is not at issue here,

but it is a helpful to understanding that when the

government accepts a donated monument, it does not

necessarily endorse the intended message of the donor

or creator. Id. at 476-477. Officials in Pleasant Grove

City incorporated the donated Ten Commandments

monument into a message about the city’s history.

Similarly, the Memorial now stands in Veterans

Memorial Park and contributes to its commemorative

message along with other monuments. Moreover, it

was neither commissioned nor financed by the

government, and the Commission took title for

purposes of traffic safety—not to communicate a

government message.

C. The government may acknowledge the

nation’s religious heritage—including

Christianity.

This case is not about a religious message. But even

if it were, federal and state governments may

acknowledge the religious beliefs and history of the

American people. Lynch, 465 U.S. at 674 (“unbroken

history of official acknowledgment by all three

branches of government of the role of religion in

American life from at least 1789”); School Dist. of

Abington Township v. Schempp, 374 U.S. 203, 212-213

(1963) (“the Founding Fathers believed devotedly that

there was a God and that the unalienable rights of man

were rooted in Him”); Engel v. Vitale, 370 U.S. 421, 434

(1962) (“The history of man is inseparable from the

history of religion.”); Zorach v. Clauson, 343 U.S. at

313 (“We are a religious people whose institutions

presuppose a Supreme Being.”). The Establishment

Clause does not mandate “eradication of all religious

symbols in the public realm” nor does it “oblige

government to avoid any public acknowledgment of

religion’s role in society.” Salazar v. Buono, 559 U.S. at

718-719.

The Fourth Circuit admits that the “semi-secular

history” of the Memorial “does not clearly support one

party over the other.” Am. Humanist Ass’n, 874 F.3d at

208. Nevertheless, the outcome hinges on its

observation that the Latin cross is exclusively a

Christian symbol, unlike the Ten Commandments or

the more generic motto “In God We Trust.” Id. at 207208. Indeed, it might “be deemed offensive to

Christians” to hold otherwise. Id. at 207 n. 9. The court

also noted “the American Legion’s affiliation with

Christianity.” Id. at 209. But as the dissent points out,

the majority ruling inevitably “would lead to per se

findings that all large crosses are unconstitutional

despite any amount of secular history and context.” Id.

at 219 (Gregory, J., dissenting).

In addition to its “secular history and context,” the

cross could be viewed as a permissible acknowledgment

of religion. Government acknowledgment may

encompass the reality that this nation has deep roots

in Christianity. America was long regarded “a

Christian nation.” Church of Holy Trinity v. United

States, 143 U.S. 457, 471 (1892). “Th[e] first

congressional prayer was emphatically Christian.”

Town of Greece v. Galloway, 134 S. Ct. 1811, 1833

(Alito, J., concurring). This Court once recognized

Christianity “as a part of the common law of England”

and “a part of the public law of Pennsylvania.” Vidal v.

Phila., 43 U.S. 127, 183 (1844). Governments may

acknowledge the facts of history without compelling

anyone to affirm or support Christian doctrine.

The legal battles surrounding legislative invocations

reflect the Christian roots of America and support the

constitutionality of acknowledging those roots. In

Marsh v. Chambers, the chaplain who served the

Nebraska legislature for sixteen years was a

Presbyterian pastor. Even the dissent “recognized that

government cannot, without adopting a decidedly antireligious point of view, be forbidden to recognize the

religious beliefs and practices of the American people

as an aspect of our history and culture.” Marsh v.

Chambers, 463 U.S. at 810-811 (Stevens, J.,

dissenting). More recently, the Town of Greece was

sued due to allegations that a reasonable observer

would perceive a preference for Christian prayers.

Town of Greece, 134 S. Ct. at 1817-1818. This Court

found legislative prayer to be a “tolerable

acknowledgement of beliefs widely held.” Id. at 1818,

quoting Marsh, 463 U.S. at 792. The same is true here.

Another example of tolerable acknowledgment is

the Ground Zero cross discovered in the World Trade

Center debris, now displayed at the National

September 11 Memorial and Museum to tell the story

of its use by “[i]ndividuals of many faiths and belief

systems . . . as a symbol of hope, faith, and healing.”

Am. Atheists, Inc. v. Port Auth., 760 F.3d 227, 240 (2d

Cir. 2014). In context, the cross was found to be

“plainly historical rather than theological.” Id. The

government’s selection of artifacts to display was

admittedly “a form of government speech.” Id. at 246.

But as in this case, the government acknowledged an

item that originated with the expression and beliefs of

its citizens. The Memorial acknowledges the deep

religious convictions—and the respect shown to fallen

soldiers—that have characterized America since its

founding. And the key words attached to the

monument—“valor,” “endurance,” “courage,” and

“devotion”—are hardly unique to any one religious

tradition.

D. The government may accommodate

religion.

This case might also be viewed through the lens of

accommodation. The Commission’s preservation of

traffic safety at the Memorial’s location is not the sort

of activity “motivated wholly by religious

considerations” that this Court should invalidate.

Lynch, 465 U.S. at 680. On the contrary, there is no

religious motivation. Even so, the Commission’s

involvement with the monument, accommodating a

longstanding memorial message, parallels government

accommodation for religious expression.

In a long line of unbroken authority, this Court

affirms that the Constitution “mandates

accommodation” and “forbids hostility” toward religion.

Lynch, 465 U.S. at 673. In spite of other distinctions

and nuances, landmark Establishment Clauses cases

over the past sixty years are consistent on this point:

Salazar, 559 U.S. at 719 (“The Constitution . . . leaves

room to accommodate divergent values within a

constitutionally permissible framework.”); Elk Grove v.

Newdow, 542 U.S. at 35-36 (eradicating references to

religious heritage would sever ties to a history that

sustains this Nation even today); Walz v. Tax

Commission, 397 U.S. 664, 669 (1970) (highlighting

“benevolent neutrality” with neither “sponsorship” nor

“interference”); Zorach v. Clauson, 343 U.S. at 312-313

(rigid approach would be “hostile, suspicious, and even

unfriendly”); McCollum v. Board of Education, 333 U.S.

203, 256 (1948) (rejecting “rigid interpretation”).

In Salazar v. Buono, Congress faced a dilemma with

similarities to this case. Faced with an injunction

requiring the removal of the Sunrise Rock cross, the

government could not lawfully maintain it—“but it

could not remove the cross without conveying

disrespect for those the cross was seen as honoring.”

Salazar v. Buono, 559 U.S. at 716. Congress passed a

land-transfer statute “true to the spirit of practical

accommodation that has made the United States a

Nation of unparalleled pluralism and religious

tolerance.” Id. at 724 (Alito, J., concurring). Demolition

of the monument would have likely been perceived as

government hostility toward the nation’s religious

heritage, rather than the neutrality the Constitution

demands. Id. at 726. Here, mutilation or demolition of

the Memorial would convey extreme disrespect for the

veterans it was erected to honor. There was no

Establishment Clause issue when it stood on private

land, supported by private funds. When the

Commission took title in the interests of traffic safety,

that action accommodated a commemorative message

that had been part of the Bladensburg community for

four decades.

Many Establishment Clause challenges could be

averted “if the Court would return to the views of the

Framers and adopt coercion as the touchstone for our

Establishment Clause inquiry.” Van Orden, 545 U.S. at

697 (Thomas, J., concurring). The Memorial does not

coerce anyone to affirm a religious doctrine or engage

in a religious exercise—and its clear purpose is

unrelated to religion. Removing it would constitute the

very hostility the Constitution prohibits.

Moreover, the government may provide general

public benefits to the entire community. It is “obviously

not the purpose of the First Amendment” to cut off

religious activities from general public services—such

as public streets and sidewalks—unrelated to religious

function. Everson v. Board of Education of Ewing, 330

U. S. 1, 18 (1947); Trinity Lutheran Church of

Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2027 (2017)

(Breyer, J., concurring) (finding “no significant

difference” between Everson and Trinity Lutheran).

Nor does such action even remotely constitute the

forbidden “entanglement” of Lemon v. Kurzman, 403

U.S. 602 (1974). This case, like Trinity Lutheran,

involves expenditures for public safety, not religious

advocacy. In Trinity Lutheran, it was playground

safety, and in this case, traffic safety at a busy

intersection. The government “merely maintain[s] a

monument within a state park and a median in

between intersecting highways that must be well lit for

public safety reasons.” Am. Humanist Ass’n, 874 F.3d

at 222 (Gregory, C. J., dissenting). Even if the

Memorial did convey a religious message, the

government could provide traffic safety in the

surrounding area.

III.

THE GOVERNMENT PRESERVES AND

RESPECTS A COMMEMORATIVE

MESSAGE CREATED BY PRIVATE

CITIZENS.

The Memorial was originally constructed by private

organizers—families of the fallen soldiers, later joined

by the American Legion—using private funds, on

private land, to convey the organizers’ commemorative

message. The Commission preserved that message 40

years later by taking title in order to provide for traffic

safety in the area.

Any reasonable observer with even a cursory

knowledge of the Memorial’s 90-year history would

understand that “while the monument sits on public

land, it did not sprout from the minds of [government]

officials and was not funded from [government]

coffers.” Card v. City of Everett, 520 F.3d 1009, 1020

(9th Cir. 2008). The message “sprouted” from the minds

of the mothers who wanted to honor the 49 men who

had sacrificed their lives in the recent war. The

Memorial’s placement was “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.” Am. Humanist Ass’n, 874

F.3d at 219 (Gregory, J., dissenting). Its history dates

back an entire century. It was in 1918 that private

citizens began to raise money for its construction.

Several years later, in 1922, they ran short of funds

and the American Legion—a private organization—

assumed responsibility. Am. Humanist Ass’n, 874 F.3d

at 200. Over the years, events have been hosted to

celebrate Memorial Day, Veterans Day, the Fourth of

July, and September 11th remembrances. Religious

services were only held (if at all) three times in 1931.

Id. at 217 (Gregory, C. J., dissenting). At that

time—thirty years before the Commission became

involved—the Memorial was still located on private

land.

The origins of the Memorial are reminiscent of

Sunrise Rock in Salazar v. Buono where, “[i]n 1934,

private citizens placed a Latin cross on a rock

outcropping in a remote section of the Mojave Desert.”

Salazar v. Buono, 559 U.S. at 705-706. Their purpose,

“to honor American soldiers who fell in World War I”

(id. at 706), is virtually identical to that of the

Memorial’s organizers. As in Bladensburg, “the cross

was not placed on Sunrise Rock to promote a Christian

message” or “to set the imprimatur of the state on a

particular creed” but “simply to honor our Nation’s

fallen soldiers.” Id. at 715.

The Tenth Circuit faced a challenge similar to this

case in Am. Atheists, Inc. v. Duncan, 637 F.3d 1095

(10th Cir. 2010). The Utah Highway Patrol Association

(“UHPA”), a private nonprofit organization, initiated a

plan to honor fallen troopers with 12-foot high

memorial crosses. Id. at 1111. Crosses were initially

placed on private land, with the consent of each fallen

officer’s family. Later, UHPA obtained consent from the

state to place some of them on public property where

motorists would be reminded of the troopers’ sacrifices.

Id. at 1112. The memorial crosses are privately funded,

owned, and maintained by UHPA. Id. Nevertheless, the

court concluded they were a government endorsement

of Christianity, rejecting the possibility they could be

“UHPA’s private speech, not the expression of the state

of Utah.” Id. at 1114. This conclusion was supposedly

mandated by Pleasant Grove City (id.)—but that case,

unlike either Duncan or the case before this Court,

involved a Free Speech claim. In Pleasant Grove City

this Court did not establish a rigid, per se rule that

every monument standing on public property is always

government speech. On the contrary, after a lengthy

discussion about how monuments convey meaning, this

Court observed that the government “does not

necessarily endorse the specific meaning that any

particular donor sees.” Pleasant Grove City, 555 U.S. at

476-477. While this Court did not speak directly to the

Establishment Clause challenge lurking in the

background, there were hints that the Ten

Commandments monument could have survived such

a challenge, as in Van Orden. Id. at 482 (Scalia, J.,

concurring) (“The city ought not fear that today’s

victory has propelled it from the Free Speech Clause

frying pan into the Establishment Clause fire.”).

In a nation governed by representatives of the

people, it is unsurprising that the government would

acknowledge, respect, and accommodate the sentiments

of the people. Government actions and speech often

intersect the beliefs of private citizens. Here, the

Commission has shown respect for the private

organizers and those they sought to honor. The

Bladensburg WWI Memorial is not a government

creation and does not “speak” for any government

entity. Contextual and historical elements support the

monument’s commemorative message. The monument

was designed by private citizens, not to convey a

religious message but to stand as a tribute to the men

who died to preserve American liberty—including

religious liberty. Ironically, this includes the liberty of

the American Humanist Association members and

other like-minded citizens to reject religion.

IV.

THIS COURT SHOULD CRAFT A TEST TO

BRING CLARITY TO CASES INVOLVING

RELIGIOUS SYMBOLISM ON PUBLIC

PROPERTY.

Many monuments stand in national public parks

across the nation. Often these were privately financed

and/or donated by private parties. Pleasant Grove City,

555 U.S. at 471. These monuments, including many

honoring war heroes, are part of American history and

tradition. Other passive displays, some permanent and

others temporary, appear at various times and places.

Holiday and historical themes are common, sometimes

in or near government buildings. Cases have been

litigated in this Court over many decades, with little

clarity or consistency. This case offers an opportunity

to illuminate this Court’s Establishment Clause

jurisprudence, particularly with respect to passive

displays incorporating religious symbolism.

A good test should be objective. It should focus on

whether a government action actually violates the

Establishment Clause, judged in light of American

history and tradition, rather than the subjective

complaints of the “offended observer” or the perception

of the ill-defined “reasonable observer” passing by. The

“reasonable observer” of recent cases is “increasingly

hostile to religious symbols in the public sphere.”

Duncan, 637 F.3d at 1101 (Kelly, J., dissenting from

denial of rehearing en banc). This malleable imaginary

person may be “biased, replete with foibles, and prone

to mistake” and thus easily manipulated to reach

desired results. Id. at 1108 (Gorsuch, J., dissenting

from denial of rehearing en banc). The combination of

“offended” and “reasonable” observers is lethal, leading

to blatant hostility to all things religious in the public

square—a result never contemplated by the

Constitution’s Framers. In cases like Duncan, courts

dare to presume unconstitutionality based on what a

poorly defined observer might mistakenly think. Id.

That approach should be jettisoned and replaced with

a return to coercion as “the touchstone” of the inquiry.

Van Orden, 545 U.S. at 697 (Thomas, J., concurring).

CONCLUSION

This Court should reverse the decision of the Fourth

Circuit and hold that the Bladensburg WWI Memorial

is constitutional.

Respectfully submitted,