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

Supreme Court briefJan 23, 2019

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Text

Nos. 17-1717, 18-18

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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 Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

------------------------------------------------------------------

BRIEF FOR RESPONDENTS

-----------------------------------------------------------------MONICA L. MILLER

Counsel of Record

AMERICAN HUMANIST ASSOCIATION

1821 Jefferson Place N.W.

Washington, D.C. 20036

(202) 238-9088

mmiller@americanhumanist.org

Counsel for Respondents

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

This Court has been undivided in understanding

the Establishment Clause to prohibit the government

from aligning itself with a single religion. The Latin

cross is the preeminent symbol of Christianity and

Christianity alone. No other faith uses the Latin cross

as a symbol of death or sacrifice. The question presented is this:

Does the Establishment Clause allow the government to permanently and prominently commemorate

Christian veterans—and only Christian veterans—by

funding, maintaining, using, and displaying a massive

concrete Latin cross in the center of a heavily-trafficked intersection at the entrance of town?

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

TABLE OF CONTENTS ......................................

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

STATEMENT OF THE CASE..............................

Factual Background ..................................

1. The origins of Bladensburg’s Latin

Cross ....................................................

2. The historical context in which the

Bladensburg Cross was erected ..........

3. The Cross’s physical features and setting .......................................................

4. The Commission’s ownership of the

Cross .................................................... 11

5. The Commission’s 1985 Renovation

and Rededication of the Cross to all

veterans and Town-sponsored events

with Christian clergy........................... 12

6. 2008-present: A crumbling “eyesore”

and safety hazard ................................ 14

7. The Latin cross and its exclusively

Christian meaning............................... 16

Procedural History .................................... 17

SUMMARY OF ARGUMENT .............................. 19

ARGUMENT ........................................................ 26

iii

TABLE OF CONTENTS – Continued

Page

The Bladensburg Cross violates fundamental Establishment Clause principles

irrespective of the Lemon test ................... 26

A. The central principle of the Establishment Clause is that the government

cannot align itself with any one religion ...................................................... 27

1. The government violates the central command of the Establishment

Clause when it places its imprimatur upon a potently sectarian symbol such as the Latin cross ............. 30

2. The Latin cross is not a secular

symbol that represents Islam, Judaism, Atheism, and Christianity

alike ................................................ 34

B. Using a Latin cross as a war memorial

does not make the cross secular; it

makes the war memorial Christian .... 37

1. Neither the Latin cross generally,

nor this Cross in particular, commemorates, honors, or respects

non-Christian veterans .................. 37

2. The Latin cross is not a universal

secular World War I symbol and,

even if it were, that’s not why it was

chosen here ..................................... 42

TABLE OF CONTENTS – Continued

Page

In World War I cemeteries, a

cross marks a Christian soldier’s

grave and a Star of David marks

a Jewish soldier’s grave .............. 42

ii. The Bladensburg Cross does not

evoke a World War I headstone

nor was it intended to ............... 47

3. Allowing the government to redefine

the meaning of the Latin cross as a

“secular” and “benign” symbol of all

“the fallen”—to represent the sacrifices of Atheists and Muslims

alike—would degrade religion in the

very ways the Founders feared ........ 49

C. Far from undercutting the government’s imprimatur, the Cross’s context only aggrandizes it ....................... 53

1. The Cross was erected with the

Town’s blessing and has been

owned, funded, used, promoted,

and prominently displayed by the

government for decades .................. 54

2. The Cross is a permanent, not

ephemeral, monument .................... 56

3. The Cross is the Town’s most prominent monument ............................. 57

4. The Cross dominates its surroundings and is not integrated into a

larger display .................................. 58

TABLE OF CONTENTS – Continued

Page

5. The nature of the property on

which this Cross stands makes the

government’s imprimatur unambiguous ............................................ 61

6. The longevity of this Cross has intensified its exclusionary sectarian

meaning .......................................... 63

II.

The “history” and “coercion” tests advocated

by Petitioners and their amici have little to

commend themselves and, in any event,

would not change the outcome here ............ 66

A. The “history” test is unworkable and

unprincipled, has been repeatedly rejected by this Court, and is in any

event met here ..................................... 67

1. Town of Greece did not modify the

legal standard for legislativeprayer, let alone for Establishment

Clause jurisprudence generally ...... 67

2. This Court has never held—and indeed has disavowed—that a practice is authorized under the

Establishment Clause simply because it has a strong historical pedigree ................................................ 69

3. Even if Town of Greece were applicable here, it would not call for a reversal .............................................. 72

TABLE OF CONTENTS – Continued

Page

This imposing 40-foot Cross is

not an internal practice to accommodate the spiritual needs

of lawmakers ............................. 72

ii. The Bladensburg Cross is not

ecumenical ................................. 72

iii. There is no long, unbroken, and

unambiguous history accepted

by our Framers of conspicuously displaying massive solitary Latin crosses or using the

Latin cross as a non-Christian

military symbol ......................... 73

4. The “history” test is neither a workable nor principled approach to religious-display cases. ...................... 78

B. Holding that the Establishment

Clause does nothing more than preclude religious coercion would write

the Establishment Clause out of the

Constitution and overturn seventy

years of precedent ............................... 81

1. This Court has consistently rejected the argument that coercion

is a necessary requirement for an

Establishment Clause violation ..... 81

2. The coercion-only standard is unworkable, unprincipled, and akin to

no test at all in the context of religious displays ................................. 82

vii

TABLE OF CONTENTS – Continued

Page

3. The Cross fails the coercion test .... 87

III.

If the Court reaches the question, it

should reaffirm the Lemon test and hold

that the Bladensburg Cross runs afoul of

the test ....................................................... 89

A. The Lemon test derived from decades

of precedent, effectuates the principles

of the Establishment Clause, and has

brought clarity and consistency to religious-display cases ............................ 89

B. The Cross is unconstitutional under

Lemon .................................................. 92

IV.

Upholding the Fourth Circuit’s decision

will not have the calamitous consequences

Petitioners and their amici forecast .......... 93

A. Declaring the Bladensburg Cross unconstitutional would not doom other

war memorials ..................................... 93

1. Petitioners overexaggerate the

ubiquity of freestanding Latin

cross memorials .............................. 93

2. The Bladensburg Cross is materially distinguishable from crosses in

cemeteries and other multi-faith

complexes ........................................ 96

viii

TABLE OF CONTENTS – Continued

Page

B. Affirming the Fourth Circuit’s ruling

would not portend the “mutilation” of

the Cross; nor would reversing save

the Cross from its own demise ............ 99

CONCLUSION..................................................... 100

TABLE OF AUTHORITIES

Page

CASES

ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999) .........98

ACLU v. Rabun Cnty. Chamber of Commerce,

Inc., 698 F.2d 1098 (11th Cir. 1983) ........................35

ACLU v. St. Charles, 794 F.2d 265 (7th Cir.

1986) ...................................................... 31, 59, 64, 75

American Atheists, Inc. v. Duncan, 616 F.3d 1145

(10th Cir. 2010)................................ 40, 41, 42, 44, 98

American Atheists, Inc. v. Port Authority, 760

F.3d 227 (2d Cir. 2014) ............................................62

American Humanist Association v. Lake Elsinore, 2014 U.S. Dist. LEXIS 25180 (C.D. Cal.

2014) ........................................................................41

Board of Education of Kiryas Joel Village School

District v. Grumet, 512 U.S. 687 (1994).... 27, 83, 88, 90

Board of Education v. Mergens, 496 U.S. 226

(1990) .......................................................................81

Bowen v. Kendrick, 487 U.S. 589 (1988) .....................84

Braunfeld v. Brown, 366 U.S. 599 (1961) ...................90

Buono v. Norton, 371 F.3d 543 (9th Cir. 2004) ...... 40, 41

Capitol Square Review & Advisory Board v.

Pinette, 515 U.S. 753 (1995) ............................ passim

Church of the Lukumi Babalu Aye Inc. v. City of

Hialeah, 508 U.S. 520 (1993) ..................................79

City of Ladue v. Gilleo, 512 U.S. 43 (1994) .................96

TABLE OF AUTHORITIES – Continued

Page

Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973) ... 69, 79, 81, 86, 89

Corp. of Presiding Bishop of the Church of Jesus

Christ of Latter-Day Saints v. Amos, 483 U.S.

327 (1987) ................................................................87

County of Allegheny v. ACLU, 492 U.S. 573

(1989) ............................................................... passim

Dickerson v. United States, 530 U.S. 428 (2000) ........26

Edwards v. Aguillard, 482 U.S. 578 (1987) ... 68, 81, 84, 91

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S.

1 (2004) ....................................................................29

Ellis v. La Mesa, 990 F.2d 1518 (9th Cir. 1993) .........41

Engel v. Vitale, 10 N.Y.2d 174 (1961) .........................70

Engel v. Vitale, 370 U.S. 421 (1962) .................... passim

Epperson v. Arkansas, 393 U.S. 97 (1968) ...... 28, 82, 83

Everson v. Board of Education, 330 U.S. 1

(1947) ............................................... 28, 67, 74, 84, 91

Friedman v. Bd. of Cnty. Comm’rs, 781 F.2d 777

(10th Cir. 1985).................................................. 38, 57

Gillette v. United States, 401 U.S. 437 (1971) ............90

Glassroth v. Moore, 335 F.3d 1282 (11th Cir.

2003) ........................................................................73

Gonzales v. North Township Lake County, 4 F.3d

1412 (7th Cir. 1993)..................................... 35, 41, 57

TABLE OF AUTHORITIES – Continued

Page

Greater Houston Chapter of ACLU v. Eckels, 589

F. Supp. 222 (S.D. Tex. 1984), reh’g denied, 763

F.2d 180 (5th Cir. 1985) ................................... passim

Green v. Haskell Cnty. Bd. of Comm’rs, 574 F.3d

1235 (10th Cir. 2009) ...............................................59

Harris v. City of Zion, 927 F.2d 1401 (7th Cir.

1991) .................................................................. 40, 56

Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S.

203 (1948) ................................................................70

Jewish War Veterans v. United States, 695

F. Supp. 3 (D.D.C. 1988) .............................. 36, 41, 47

King v. Burwell, 135 S. Ct. 2480 (2015) .....................67

Kondrat’yev v. City of Pensacola, 2017 U.S. Dist.

LEXIS 203588 (N.D. Fla. June 19, 2017) ...............41

Larkin v. Grendel’s Den, Inc., 459 U.S. 116

(1982)..................................................................... 68, 83

Larson v. Valente, 456 U.S. 228 (1982) ........... 26, 28, 90

Lee v. Weisman, 505 U.S. 577 (1992) .................. passim

Lemon v. Kurtzman, 403 U.S. 602 (1971) ........... passim

Lynch v. Donnelly, 465 U.S. 668 (1984) .............. passim

Marsh v. Chambers, 463 U.S. 783 (1983) ........... passim

McCreary County v. ACLU, 545 U.S. 844 (2005).... passim

McDonald v. City of Chi., 561 U.S. 742 (2010) ...........80

McGowan v. Maryland, 366 U.S. 420 (1961) ..............90

Meek v. Pittenger, 421 U.S. 349 (1975) .......................89

xii

TABLE OF AUTHORITIES – Continued

Page

Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir.

2010) .............................................. 30, 32, 57, 72, 100

Pitts v. City of Kankakee, 267 F.3d 592 (7th Cir.

2001) ........................................................................64

Pleasant Grove City v. Summum, 555 U.S. 460

(2009) ................................................................. 30, 62

Robinson v. City of Edmond, 68 F.3d 1226 (10th

Cir. 1995) .................................................................35

Rosenberger v. Rector and Visitors of Univ. of Va.,

515 U.S. 819 (1995) ............................... 29, 62, 84, 90

Salazar v. Buono, 559 U.S. 700 (2010) ............... passim

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290

(2000) ........................................................... 63, 68, 86

Sch. Dist. of Abington Twp. v. Schempp, 374 U.S.

203 (1963) ................................................................50

School Dist. of Grand Rapids v. Ball, 473 U.S.

373 (1985) ................................................................50

Separation of Church & State Comm. v. City of

Eugene, 93 F.3d 617 (9th Cir. 1996) ............ 36, 40, 41

Skoros v. City of New York, 437 F.3d 1 (2d Cir.

2006) ........................................................................98

State v. West, 9 Md. App. 270 (1970) ....................... 5, 65

Stone v. Graham, 449 U.S. 39 (1980) .................... 56, 91

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) ..... 70, 82

Torcaso v. Watkins, 367 U.S. 488 (1961) ............... 70, 90

Town of Greece v. Galloway, 572 U.S. 565 (2014) .... passim

xiii

TABLE OF AUTHORITIES – Continued

Page

Trump v. Hawaii, 138 S. Ct. 2392 (2018) ...................28

Trunk v. City of San Diego, 629 F.3d 1099 (9th

Cir. 2011) ......................................................... passim

Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003) ......56

Van Orden v. Perry, 545 U.S. 677 (2005) ............ passim

Virginia v. Black, 538 U.S. 343 (2003) ..........................7

Wallace v. Jaffree, 472 U.S. 38 (1985) ................... 29, 81

Walz v. Tax Commission, 397 U.S. 664

(1970) ..................................................... 69, 70, 83, 85

Welsh v. United States, 398 U.S. 333 (1970) ...............82

Zorach v. Clauson, 343 U.S. 306 (1952) ..... 28, 50, 51, 74

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ........................................... passim

STATUTES

Honoring America’s Veterans and Caring for

Camp Lejeune Families Act of 2012, Pub. L.

No. 112-154, § 604, 126 Stat. 1165 (2012) ..............97

REGULATIONS

23 CFR § 710.403(a) ...................................................58

xiv

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

ANC Explorer, Monuments, https://bit.ly/

2FBM7Fw (accessed Jan. 15, 2019) ........................97

Ann E. Marimow and Michael E. Ruane, A World

War I cross under siege, Washington Post (Sept.

21, 2018), https://wapo.st/2U2UvRo......................... 10

Arlington National Cemetery, Argonne Cross

(WWI) (Oct. 7, 2015), https://perma.cc/K4RYQFCU.......................................................................97

Arlington National Cemetery, Brochure, https://

perma.cc/E75P-HJAA (accessed Jan. 15, 2019) ......98

Ashitha Nagesh, Woman gets grumpy complaint

for festive ‘dragon nativity’ scene, BBC News

(Dec. 20, 2018), https://bbc.in/2TkDKkA ................52

Benjamin H. Hartogensis, Denial of Equal

Rights to Religious Minorities and Non-Believers in the United States, 39 Yale L.J. 659

(1930) .........................................................................5

Benjamin H. Hartogensis, Unequal Religious

Rights In Maryland Since 1776, 25 Publications of the AMERICAN JEWISH HISTORICAL

SOCIETY (1917), https://www.jstor.org/stable/

43058054 ...................................................................5

Danielle Gorman, The Prophet with 6 Sons in

WWI + More Latter-day Saint Connections

Makes You Think, LDS Living (Nov. 10, 2018),

https://bit.ly/2HjEJAe .............................................45

TABLE OF AUTHORITIES – Continued

Page

David Gonzales, Pensacola Man’s Facebook Post

Targets AHA Lawyer In Cross Case, Ignites

Firestorm, ABC3 (June 22, 2017), https://

bit.ly/2RtBqeH ........................................................66

Dean M. Kelley, Beyond Separation of Church

and State, 5 J. Church & State 181 (1963),

https://www.jstor.org/stable/23913258....................52

Douglas Keister, Stories in Stone: A Field Guide

to Cemetery Symbolism and Iconography (2004).......16

Elizabeth Fleet, Madison’s “Detached Memoranda,” 3 Wm. & Mary Quarterly 562 (1946) ........79

Emanuel Milton Altfeld, The Jewish Struggle for

Religious and Civil Liberty in Maryland

(1924), https://bit.ly/2DnlQs8 ...................................6

Giles Fraser, Christians must understand that

for Jews the cross is a symbol of oppression,

The Guardian (2014), https://bit.ly/2LP63DN .......16

Google Maps, https://goo.gl/maps/QXupqkdCYGy,

https://goo.gl/maps/cRroAB86QW72 [https://bit.

ly/2R4h3zm] (accessed Jan. 14, 2019) ....................10

Jewish Washington, Restrictions, Scrapbook Of An

American Community, https://bit.ly/2SVkN85

(accessed Jan. 14, 2019) ................................................ 6

Laurel Wamsley, Satanic Sculpture Installed At

Illinois Statehouse, Just In Time For The Holidays, NPR (Dec. 4, 2018), https://n.pr/2Rz1ukj ....... 52

M. Newton & J. Newton, The Ku Klux Klan: An

Encyclopedia (1991) ..................................................7

xvi

TABLE OF AUTHORITIES – Continued

Page

Meagan Flynn, To Catholics, Junípero Serra is a

saint. To Stanford University, he’s a mailing

address worth eliminating, The Washington

Post (Sept. 18, 2018), https://wapo.st/2AHvwfk ........16

Michael Corcoran, For Which It Stands, An

Anecdotal Biography of the American Flag

(2002) .......................................................................74

Michael Sledge, Soldier Dead: How We Recover,

Identify, Bury, & Honor Our Military Fallen

(2005) .......................................................................46

National Park Service, LATIN CROSS—Christian Faith, https://bit.ly/2Hnyxrc (accessed

Jan. 14, 2019) ..........................................................16

Nikki Wentling, ‘It’s a brotherhood’: Veterans

who fought for Vietnam helicopter monument

at Arlington see it unveiled, Stars and Stripes,

https://perma.cc/FG9Y-83MZ ..................................97

Olivia B. Waxman, ‘We Became Warriors Again’:

Why World War I Was a Surprisingly Pivotal

Moment for American Indian History, Time

Magazine (Nov. 23, 2018), http://time.com/5459439/

american-indians-wwi/ ...........................................45

Robert S. Alley, James Madison on religious liberty (Prometheus Books 1985) ................................77

Robin Wright, Humayun Khan Isn’t the Only

Muslim American Hero, The New Yorker

(Aug. 15, 2016), https://bit.ly/2D9oPV3 ..................39

xvii

TABLE OF AUTHORITIES – Continued

Page

Sir Frederick Kenyon, War Graves: How the

Cemeteries Abroad Will Be Designed (1918),

http://handle.slv.vic.gov.au/10381/90357 ................76

Smithsonian Institute, Polar Bear Memorial

(sculpture), https://s.si.edu/2UJY7Js (accessed

Jan. 15, 2019) ..........................................................95

Smithsonian Institute, Volusia County Memorial To World War Heroes, (sculpture), https://

s.si.edu/2SMoEEz (accessed Jan. 15, 2019) ...........95

Smithsonian Institute, World War I, (sculpture)

(outdoor sculpture), https://s.si.edu/2Fq7jNW,

[https://perma.cc/8CYT-7WWU] .............................95

Smithsonian Institute, World War I, (sculpture)

(outdoor sculpture) (cross), https://s.si.edu/

2sjmqB1 ...................................................................95

Smithsonian Institution Research Information

System, World War I Monument (sculpture)

https://s.si.edu/2M4jjG7 (accessed Jan. 16,

2019) ........................................................................99

Steve Newton, Nativity removed; governor says

it ‘mocks Christians’, USA Today (Dec. 23,

2015), https://bit.ly/2CHfmEp.................................52

Thomas Jefferson, The Virginia Statute for Religious Freedom (Jan. 16, 1786), reprinted in

FOUNDING THE REPUBLIC: A DOCUMENTARY HISTORY (John J. Patrick ed., 1995) ..............................50

xviii

TABLE OF AUTHORITIES – Continued

Page

U.S. Dept. of Veterans Affairs, Available Emblems of Belief for Placement on Government

Headstones and Markers, National Cemetery

Administration, http://www.cem.va.gov/hmm/

emblems.asp (accessed Jan. 12, 2019) ....................17

Vatican Radio, Pope says the Cross is the gate of

salvation, prays for youths after Guatemala

blaze, Abouna.org (Mar. 12, 2017), https://bit.

ly/2Cn0tFM .............................................................51

Vivek Chaudhary, The forgotten Muslim heroes

who fought for Britain in the trenches, The

Guardian (Nov. 11, 2017), https://bit.ly/2IGU9yN .......45

1 Writings of Thomas Jefferson 62 (P. Ford ed.

1892) ........................................................................77

STATEMENT OF THE CASE

Factual Background

The government is prominently displaying a 40foot-tall concrete Latin cross—symbolic of “Calvary, as

described in the Bible”—at the entrance to the Town of

Bladensburg in the center of one of the busiest intersections in Prince George’s County, Maryland (the

“Bladensburg Cross” or the “Cross.”) Pet.App.6a-7a,

54a, 59a1; J.A.279, 984, 1410. The Cross and the median are owned and maintained exclusively by the

Maryland-National Capital Park and Planning Commission (“Commission”), a bi-county agency funded by

Prince George’s County and Montgomery County.

Pet.App.55a; J.A.70, 290, 299.

1. The origins of Bladensburg’s Latin Cross

In January of 1919, residents of Prince George’s

County chose a secular doughboy as the symbol to commemorate those who perished in World War I. J.A.6061, 110-13, 462. The memorial was unveiled in 1919 at

the county courthouse, bearing the same names as

those that would later appear on the Bladensburg

Cross. J.A.112, 145, 462.

Later that same year, apparently dissatisfied

with this secular memorial, the Good Roads League obtained the consent of the Commissioners of the Town

“Pet.App.” refers to the Commission’s Petition Appendix.

of Bladensburg (the “Town”) to erect a large “Calvary

Cross” on Town property. Pet.App.6a-8a, 55a-58a.

The plan was to erect a “mammoth cross, a likeness of the Cross of Calvary, as described in the Bible.”

Pet.App.7a; J.A.428. “Calvary” refers to the “proper

name of the place where [Jesus] Christ was crucified.”

Pet.App.7a; J.A.135. The committee overseeing the effort was aptly named the “Calvary Cross Memorial”

committee. J.A.431.

John Earley, who had recently designed a critically

acclaimed Catholic shrine, was chosen as the Cross’s

designer. J.A.309-10, 1348-50, 1545-47. The Committee

then proceeded to fundraise for the edifice (J.A.428,

431) asking donors to sign a pledge stating that they

“trust[ed] in God, the Supreme Ruler of the universe,”

and pledged to “ ‘one god, one country and one flag.’ ”

Pet.App.55a-56a; J.A.43, 1252.

The Town “soon picked the perfect spot for their

memorial, the former Bladensburg Port landing—the

center of the town’s economic and social life for much

of the nineteenth century.” Maryland Elected Officials

and Prince George’s County Amicus Br.13. “Town leaders chose to locate the monument on a prominent piece

of land in what was then the center of town” (id. at 6),

as the land was then “owned by the Town.” Pet.App.7a,

56a-57a; J.A.64.

At the groundbreaking ceremony, held on September 28, 1919, the Secretary of the Navy “was the primary speaker” and other “ ‘speeches were given by

local officials.’ ” Pet.App.56a-57a; J.A.1260, 910, 102426.

By 1922, the Calvary Cross was erected in its cruciform but unfinished. J.A.177, 1027, 1056, 1061-62.

C.A.App.1208. The committee failed to raise enough

funds and thus abandoned their efforts. Pet.App.57a;

J.A.462. This was “attributed to the keen competition”

the Cross faced with the secular memorial slated for,

and then erected at, the courthouse—which yielded a

“far more successful” fundraising campaign. J.A.462.

“[M]any citizens, aware the county already had a war

memorial, deemed unnecessary to support further attempts to complete the Peace Cross.” Id.

Due to its prominent placement on the main

Washington-Baltimore thoroughfare, the unfinished

Cross “became an eye-sore to those who passed everyday.” J.A.462. So on February 25, 1922, the Town “resolved” to convey to the American Legion (“Legion”)

Post 3 the “care” of the land on which “the cross now

stands” for the “completion” of the Cross. Pet.App.57a58a; J.A.64-65, 463. The land, “together with the Cross

and its surroundings,” would revert to the Town if Post

3 disbanded. Pet.App.58a; J.A.65.

The Legion’s first fundraising drive for the Cross

in April 1922 featured Christian prayers. Pet.App.4a;

J.A.1058-59. In May 1922, the Legion held memorial

services at the site, where a Christian chaplain led

prayer and those in attendance sang the Christian

hymn, “Nearer My God to Thee.” Pet.App.7a; J.A.106162.

The Cross was dedicated on July 12, 1925, at a

public ceremony led by government officials and Christian clergy. Pet.App.58a-59a; J.A.216-18. The keynote

speaker, Maryland Representative Stephen Gambrill,

reaffirmed this Cross’s distinctly Christian meaning,

declaring: “by the token of this cross, symbolic of Calvary, let us keep fresh the memory of our boys who died

for a righteous cause.” Pet.App.59a; J.A.216-18 (emphasis added).

A Roman Catholic priest and a Baptist minister

delivered Christian prayers. Pet.App.7a; J.A.217-18.

Other “local officials and figures delivered remarks.”

Pet.App.59a. “No rabbi or Jewish leader took part in

the dedication of the [Bladensburg] Cross despite the

close proximity” to “substantial Jewish communities.”

J.A.118-19.

Immediately after its dedication, the Cross became the site for “rites,” “exercises,” “services” and

“marches,” many of which included prayers.

Pet.App.8a, 23a, 62a; J.A.179, 471-88. On July 26, 1925,

robed Klansmen marched from “the peace cross at

Bladensburg to the fiery cross at Lanham.” J.A.505-06.

In May 1928, “exercises at the foot of the Memorial

Cross” included prayers by Rev. Carey of St. Jerome’s

Catholic Church and Rev. Robertson of the First Baptist Church. J.A.471. In May 1929, memorial “exercises” at the Cross included prayers delivered by the

Rector of St. Luke’s Episcopal Parish. J.A.1407-08.

Frank Mountford, lauded as a leading evangelist, held

three “Sunday services” at the Cross in August 1931.

Pet.App.8a, 40a, 62a; J.A.179.

2. The historical context in which the

Bladensburg Cross was erected

As expert witness Dr. Kurt Piehler testified, for

“most Jews, especially observant Jews, it would be surprising if they did not view the Bladensburg Peace

Cross as an overtly hostile Christian symbol.” J.A.121.

When the Cross was erected in 1925, it was a

crime in Maryland “to blaspheme or curse God or write

or utter profane words about our Saviour Jesus Christ

or of or concerning the Trinity or any of the persons

thereof.” Benjamin H. Hartogensis, Denial of Equal

Rights to Religious Minorities and Non-Believers in the

United States, 39 Yale L.J. 659, 676-77 (1930). This law

was enforced until 1970. State v. West, 9 Md. App. 270,

272-73 (1970).

Likewise, until this Court intervened in 1961,

Maryland’s test oath barred from office all “[c]itizens

unwilling to avow a belief in Christianity, or being

Jews, were unwilling to subscribe to a belief in a hereafter.” Benjamin H. Hartogensis, Unequal Religious

Rights In Maryland Since 1776, 25 PUBLICATIONS OF

THE AMERICAN JEWISH HISTORICAL SOCIETY 93, 98-99

(1917), https://www.jstor.org/stable/43058054. Thus,

until 1961 “Jews, unwilling to submit or subscribe to

the test, deists (like Thomas Jefferson), atheists, Pantheists, Moslems, Buddhists, and Brahmins” were excluded from office. Id. Pet.App.23a-24a.

Throughout the First World War, the Latin cross

“reflected a strain of exclusion directed against a

small, but growing Jewish population.” J.A.1098. See

J.A.1329-33. As a former commander wrote, Jewish

war veterans united to fight a “tidal-wave” of “poisonous propaganda of passion and prejudice, of Religious

bigotry, intolerance, and race hatred.” J.A.1329. “The

most baseless anti-Semitic utterances portrayed Jews”

as “money lovers who would never risk life and limb

for country.” J.A.1329.

“GENTILES ONLY” would be the sign Jews

confronted at popular vacation spots near Annapolis.

Jewish Washington, Restrictions, Scrapbook Of An

American Community, https://bit.ly/2SVkN85 (accessed

Jan. 14, 2019). Builders used restrictive covenants to

dissuade Jews from buying property in Spring Valley

and parts of Chevy Chase. Id. See also Emanuel Milton

Altfeld, The Jewish Struggle for Religious and Civil

Liberty in Maryland (1924), https://bit.ly/2DnlQs8.

In Prince George’s County in the 1920s, the Latin

cross was “appropriated by the Ku Klux Klan as a sectarian symbol designed to intimidate Jews, Roman

Catholics, and African Americans.” J.A.80. See J.A.11722, 495-523.

In 1924, 400 robed Klansmen conducted a full “Ku

Klux Klan” funeral less than a mile away from the

nearly-finished Cross and “200 persons other than

Klansmen stayed for the ceremonies.” J.A.495-96. In

1925, Klansmen marched from “the peace cross at

Bladensburg to the fiery cross at Lanham.” J.A.506,

118. That same year, 100,000 robed Klansmen

marched through Washington, D.C. J.A.119. Cross

burnings were common in nearby Mt. Rainier. Id. See

also Virginia v. Black, 538 U.S. 343, 393 (2003)

(Thomas, J., dissenting) (discussing rise in cross burnings in Virginia in 1920s); M. Newton & J. Newton, The

Ku Klux Klan: An Encyclopedia at 21, 382 (1991)

(“Jewish merchants were subjected to boycotts,

threats, cross burnings, and sometimes acts of violence.”).

“A number of Klansmen were members of the

American Legion during this era.” J.A.120. In some

“communities, the Klan and Legion memberships were

one in the same.” J.A.1334-35.

The Legion put on “the greatest ministrel [sic]

show ever held in Hyattsville” to benefit “the Memorial

Cross.” C.A.App.2088. The Legion also fundraised with

carnival games like “Coon in Barrel” and “Japanese

Board.” C.A.App.2075. See also J.A.1059.

“During World War I, attempts to use religious

iconography were seen as highly controversial.” J.A.99.

The Jewish Welfare Board protested the use of the

Latin cross on overseas chapels, the Tomb of the Unknown Soldier, as the symbol on chaplain uniforms (including for Rabbis), and most importantly, as the

symbol over Jewish graves. J.A.106-13, 160-67, 324-25,

1129-30, 1163-1241. See J.A.1143-44 (such attempts to

use the cross “showed a lack of sensitivity to nonChristian Americans who also had made the highest

sacrifice”).

Their pleas met with some success. In overseas

cemeteries, the government agreed to put Stars of

David over Jewish graves. J.A.109. The Legion (at 4)

quotes Dr. Piehler’s statement that “ ‘the Cross became

the principal grave marker’ during WWI,” but omits

the rest of the sentence: “with a Star of David gravestone used for Jewish soldiers.” J.A.1094 (emphasis

added). Accord Comm’n Br.4 (quoting J.A.1143). Cemeteries in the United States adopted the uniform slab

marker. Pet.App.35a; J.A.80, 160. And the “vast majority of World War I memorials do not make use of religious iconography in their design.” J.A.98. The “free

standing Latin Cross in Bladensburg is distinctive.”

J.A.110. The “most widely used World War I monument

erected in most communities was the doughboy

statue.” J.A.165; see J.A.110-16.

3. The Cross’s physical features and setting

The Bladensburg Cross is an “imposing 40-foot,

16-ton” (J.A.1420) concrete Latin cross. Pet.App.7a,

54a; J.A.737, 746, 750, 918, 984. The Cross is the

Town’s “most prominent symbol.” J.A.868. See J.A.4447. A councilwoman boasted in 2001: “The [Cross] has

always denoted Bladensburg.” J.A.868.

The Cross towers over a small traffic island that

serves as a median between three major commercial/

commuter roadways—“a strategic position at the point

where the Washington-Baltimore Boulevard joins the

Defense Highway leading from Washington to Annapolis.” Pet.App.56a; see J.A.33-34, 44, 306; C.A.App.686.

It is “one of the county’s busiest intersections”

(Pet.App.6a; J.A.279), traversed by “thousands” of motorists on a daily basis. J.A.1013.

The Cross is the only monument on the island.

Pet.App.8a-10a; J.A.40, 44, 53, 423-26. There are no

other religious symbols in sight. Pet.App.9a-10a, 29a,

46a. The Cross itself has no secular features aside from

a small “U.S.” star in the center. Pet.App.93a-94a;

J.A.42, 765. Petitioners assert this is the “American Legion” symbol (Comm’n Br.21; Legion Br.60), yet the

Commission’s records refer to it as a generic “gold star

bearing the letters ‘U.S.’ in red in the center.” J.A.6263, accord J.A.171, 209, 969, 973, 1505. The Legion is

not named anywhere on the Cross or its base.

Pet.App.32a-34a, 55a; J.A.1504-05.

There “are no specific pedestrian rights-of-way” to

the median and no designated parking. Pet.App.25a;

J.A.44, 70, 279, 1348, 1484; J.A.460 (“No public access

is possible.”).

Affixed to one side of the Cross’s base is a 2-foottall plaque listing men who died in World War I.

Pet.App.8a-9a, 55a.2 The plaque is usually obscured by

bushes. Pet.App.9a, 26a; J.A.41, 236, 423-24, 701, 92931, 984; C.A.App.861; 1102, 1107, 1112. Even when

cleared, the plaque cannot be read by passing motorists. Pet.App.9a, 25a; C.A.App.1463, 1104, 1112;

Not everyone named on the Cross was from Prince George’s

County. The plaque includes several men from Baltimore, D.C.,

and Virginia. J.A.467-68, 1565.

J.A.426, 887-90. One local didn’t even know her uncle’s

name was on the plaque until this litigation.3

The Cross stood as the only monument in the area

for over 20 years. J.A.992-94, 1004-07. In the 1940s, the

government approved the placement of a World War II

scroll—approximately one-third the Cross’s size—in a

separate area across the highway. J.A.1004, 44, 47.

This was the only other monument in the area for 40

years, until the even smaller (6-foot-tall) Korea-Vietnam memorial was erected near the scroll in 1983.

J.A.1006-07, 1529, 44, 46. It would be another twenty

years until the fourth memorial (for 9/11) was added

(by the county) to the separate parcel with the scroll,

but it is a walkway, not a monument. J.A.44-45. After

litigation commenced, in 2014, the government installed a War of 1812 monument about half a mile

away from the Cross and about one-half the Cross’s

size. Pet.App.9a-10a; C.A.App.707-08, 2024. And recently, the Commission installed two soldier cut-outs

(approximately 5-feet-tall) situated atop poles, but

only one is visible from the Cross and it is on the separate parcel with the scroll. Pet.App.61a; J.A.856-57.4

A 2015 Commission report conceded that the

Cross is the “centerpiece” and is “clearly towering over

the space.” J.A.1348.

Ann E. Marimow and Michael E. Ruane, A World War I

cross under siege, Washington Post (Sept. 21, 2018), https://wapo.st/

2U2UvRo.

Google Maps, https://goo.gl/maps/QXupqkdCYGy, https://goo.gl/

maps/cRroAB86QW72 [https://bit.ly/2R4h3zm] (accessed Jan. 14,

2019).

4. The Commission’s ownership of the Cross

Petitioners mislead the Court when they claim

that the Commission owns the “Cross only because of

roadway expansion and traffic safety concerns.”

Comm’n Br.13, accord 55; Legion Br.16. The Town deliberately chose to showcase the Cross by approving

its erection on prominent Town-owned property.

Pet.App.7a, 56a-57a. While Petitioners claim that the

Cross just “ended up in the median of a traffic roundabout” (Legion Br.8), a 1919 Washington Times article

confirms that it was the Town’s intent to have the

Cross placed in a median: “The cross will be erected at

the intersection of the Washington and Baltimore

boulevard and the new National Defense Highway,

now being constructed on the way to Annapolis. This

triangle park, [ ] is an admirable site.” C.A.App.1128.

See J.A.1347.

The Cross stood unfinished, but in cruciform

(J.A.177), before the Town deeded it to the Legion for

its “perpetual care” in 1922. J.A.65. Before the Post

would disband, in 1935, the governor asked the State

Roads Commission to “prevent the ‘desecration’ of the

Memorial Cross at Bladensburg by proposed erection

of a service station on the property.” J.A.491. A senator

suggested that condemning the property would prevent such “ ‘desecration.’ ” Id.

And in 1960, the Commission acquired the Cross

from the Roads Commission for the purposes of “the

future repair and maintenance of the monument.”

J.A.1535. Thus, the Commission owns the land not in

spite of the Cross, but because of it. It is unclear if the

Cross’s parcel was ever needed by the Roads Commission. See J.A.1033. But it is clear that when the Commission acquired the Cross, it was not for traffic and

safety concerns. Furthermore, any claim that the Commission’s interest is limited to ensuring the public’s

safety cannot be squared with the Commission’s choice

to “rededicate” the Cross as a government war memorial, infra.

5. The Commission’s 1985 Renovation and

Rededication of the Cross to all veterans

and Town-sponsored events with Christian clergy

In 1985, the Commission spent $100,000 of county

taxpayer funds to renovate the Cross. Pet.App.8a, 63a;

J.A.191-92, 427; C.A.App.2484.

After the renovation, on November 11, 1985, the

Commission, together with the Town, held an elaborate “Rededication” ceremony to rededicate the Cross

to “all veterans.” Pet.App.62a; J.A.68-69, 191-202, 22225.

The Commission invited Father Chimiak of St.

Matthias Catholic Church to deliver the prayers at the

ceremony and later thanked him “for his contributions

to our programs” asserting that it “trust[ed] we may

assimilate this relationship again.” J.A.195. See also

J.A.1392. Over 400 attended the rededication. J.A.195.

Since 1960, the Town has embraced the Cross as

its own (it was, after all, the Town’s to begin with).

J.A.1425; Pet.App.7a-8a, 61a-61a; see J.A.68, 182-202,

222-73, 525-608.

In addition to co-sponsoring the rededication, on

July 12, 1975, the Town participated in the Cross’s

“50th Anniversary.” J.A.526-34. The Rector of St.

Luke’s Episcopal Church delivered the opening prayer

and the featured speaker was a Christian chaplain,

who delivered the closing prayer. J.A.533-34, 1033.

On July 4, 1984, the Town hosted an “Independence Day” ceremony featuring two prayers by Father

Chimiak. J.A.187-90. The Town continued to host similar July celebrations throughout the 1980s and 1990s.

J.A.182-86, 225-29.

The Town also co-sponsors annual veterans services at the Cross with the Legion and those services

regularly include prayers by lay and ordained Christians. Pet.App.7a-8a, 23a, 61a-62a; J.A.230-73, 1043,

539-608. “Nothing in the record indicates that any of

these services represented any faith other than Christianity.” Pet.App.8a.

Moreover, every ceremony held for the Cross—its

fundraising drive, dedication, “50th anniversary,” and

rededication—included

prayers

Christians.

Pet.App.7a-8a, 23a, 59a; J.A.195-202, 471-88, 1033,

1413-16, 1059-62.

6. 2008-present: A crumbling “eyesore” and

safety hazard

For the first 15 years of the Commission’s ownership, the Cross was a low priority. A 1984 article reported that this “imposing 40-foot, 16-ton monument”

was “deteriorating,” “neglect[ed],” falling apart, and

posing a hazard to “children and adults.” J.A.1420-21.

See J.A.730-35.

After the 1985 $100,000 renovation, the Commission spent $17,000 on routine maintenance.

Pet.App.8a, 30a, 63a; J.A.69. But the commercial and

traffic pollutants and a “complex array of [other] variable stresses” rendered these efforts futile. J.A.737-38,

750-52. In 2008, the Commission set aside $100,000 for

another substantial renovation project because the

Cross was “rapidly deteriorating” with large chunks

falling off. Pet.App.8a, 30a, 63a; J.A.290-93, 850-53.

In 2009, the Commission reported: “There are two

cracks that are getting worse which potentially will

cause a face of the [Bladensburg] Cross to fall off.”

J.A.832.

A 2010 Commission report referred to the Cross as

a “public eyesore.” J.A.729. The report warned that repairs could easily “fail” and even “accelerate damage to

the monument.” J.A.752. In 2010, the Commission

sought Requests for Proposals, but none were within

budget so it cancelled the project. J.A.766, 820-32, 851,

861, 311.

When the Commission received Respondents’

cease-and-desist letter in 2012, it didn’t hesitate to “delay[ ] the restoration project.” See J.A.843-44 (“I guess

now that I don’t have anything big on my plate I can

vacation in Bora Bora. . . . . . . . . . . . .”).

In 2012, a Commission official proclaimed: “Wow.

Looks like another big chunk fell off it, so it may come

down on its own!!” J.A.841.

In November 2013, another official mused: “At

what point does one stop making repairs, and consider

whether it makes more sense to start from scratch or

not . . .?” J.A.847 (emphasis added). The Commission’s

designee testified in March 2015: “As a matter of fact,

the Peace Cross is coming down now.” J.A.1074.

These internal conversations starkly contrast

with the Commission’s public statement that the

Fourth Circuit’s “decision will necessitate an act of

shocking disrespect.” Comm’n Pet.33.

The Commission was in no hurry to recognize the

Cross’s supposed “historic significance” either. Comm’n

Br.43 (noting that the Commission did not give the

Cross local historic preservation status until 2010). See

also J.A.865 (disinterest in nominating Cross for state

preservation funding in 2012). The idea to have the

Cross listed in the National Register of Historic Places

was the brainchild of a private citizen. C.A.App.3421.

And she proposed it only because she thought this

honorific listing would thwart this litigation.

C.A.App.2124-25, 3421.

7. The Latin cross and its exclusively

Christian meaning

No “symbol [is] more closely associated with a religion than the cross is with Christianity.” Douglas

Keister, Stories in Stone: A Field Guide to Cemetery

Symbolism and Iconography 172 (2004). The Latin

cross has been the preeminent symbol of Christianity

for almost 2,000 years. Pet.App.21a, 89a-90a; J.A.81.5

The Latin cross is not embraced by non-Christians

or used by them as a symbol of death or sacrifice.

Pet.App.20a-21a, 35a; J.A.82. Some faiths even view it

as a symbol of their religious oppression. See Giles Fraser, Christians must understand that for Jews the cross

is a symbol of oppression, The Guardian (2014), https://

bit.ly/2LP63DN; National Park Service, LATIN

CROSS—Christian Faith, https://bit.ly/2Hnyxrc (accessed Jan. 14, 2019) (“Indigenous African religions

were stifled by the nineteenth century due to the religious oppression by the white Christian slave owners”); Meagan Flynn, To Catholics, Junípero Serra is a

saint. To Stanford University, he’s a mailing address

worth eliminating, The Washington Post (Sept. 18,

2018), https://wapo.st/2AHvwfk (“Serra’s contributions

to the decimation and abuse of native people who

lived—sometimes forcibly—on his Catholic settlements rendered Serra’s name unworthy of prominent

display on campus.”).

Many avowed Christians have expressed the sentiment

that the Cross should remain precisely because of its Christian

meaning. J.A.627-96.

Leading non-Christian veterans organizations,

representing a myriad of faith groups including “Jewish, Hindu, Sikh, Buddhist, Native American spiritualist,” as well as Muslim and Atheist, filed statements in

the District Court attesting to the fact that the military service of non-Christian veterans “is excluded and

disrespected when a Christian cross is presented as a

public memorial.” J.A.326-27; accord J.A.415-17, 159698. See also J.A.1537, 1540-41, 1592-95.

The U.S. Department of Veterans Affairs currently

offers 71 diverse symbols for placement on rectangular

headstones, including symbols for Humanists, Atheists, Sikhs, Baha’is, Wiccans, Buddhists, Native Americans, Mormons, and Shinto, among numerous other

faiths that do not embrace the Latin cross as a symbol

of their death and sacrifice. See U.S. Dept. of Veterans

Affairs, Available Emblems of Belief for Placement on

Government Headstones and Markers, National Cemetery Administration, http://www.cem.va.gov/hmm/

emblems.asp (accessed Jan. 12, 2019); Pet.App.35a.

B. Procedural History

Three local Humanist residents and the American

Humanist Association commenced this lawsuit in

2014. J.A.27. Plaintiffs have each regularly encountered the Cross as residents and two of them cannot

avoid the Cross in the course of their ordinary routines.

Pet.App.13a. See J.A.29-30; C.A.App.448, 456-57, 485,

530-31, 537, 545. Plaintiffs do not wish to see the Cross

torn down; they simply want it removed to private

property or modified into a non-religious memorial

(such as a slab or obelisk). J.A.37; C.A.App.466.

In November 2015, the District Court granted

summary judgment to Petitioners. Pet.App.54a. In October 2017, the Fourth Circuit reversed and remanded

without “presuppos[ing] any particular result.”

Pet.App.31a-32a. Instead, the panel directed the District Court “to explore alternative arrangements that

would not offend the Constitution.” Id.

In reaching its holding that the Cross violates the

Establishment Clause, the panel conducted a “detailed

factual analysis of the Cross, including its meaning,

history, and secularizing elements.” Pet.App.20a-29a.

It noted that 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” off to the other side

of the road. Pet.App.24a. And unlike in cemeteries such

as Arlington, it observed, there “are no other religious

symbols present [here] . . . Christianity is singularly—

and overwhelmingly—represented.” Pet.App.29a. Thus,

the Commission’s monument “endorses Christianity—

not only above all other faiths, but also to their exclusion.” Pet.App.28a.

Judge Gregory concurred on standing and on

the applicability of the test enshrined in Lemon v.

Kurtzman, 403 U.S. 602, 612-13 (1970), but faulted

the majority for focusing too heavily upon the “religious component” of the 40-foot-tall Latin cross.

Pet.App.36a-38a, 41a.

The Fourth Circuit denied rehearing en banc.

Pet.App.86a-105a. Judge Wynn concurred, reiterating

that, “to accept the Commission’s assertion that the

Latin cross erected at the Bladensburg intersection

does not convey a predominantly sectarian message

would prohibit the ability of those who raised the

symbol to prominence to continue to safeguard and

define its primary meaning.” Pet.App.95a. Judges

Gregory, Wilkinson, Agee, and Niemeyer dissented.

Pet.App.98a-105a.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

I. The central principle of the Establishment

Clause is that the government cannot align itself with

a single religion.

I.A. Although Justices have disagreed upon

whether and to what extent the Establishment Clause

prohibits the government from favoring religion over

nonreligion, there is no disagreement that the Clause

means, at the very least, that government may not

demonstrate a preference for one religion over other religions.

The Court has been unanimous that governmentsponsored endorsement of religion is unconstitutional

when the endorsement is sectarian, and this mandate

is absolute, even when no coercion is present and the

practice is longstanding.

I.A.1. Every Member of the Court to consider the

question has agreed that a prominent sectarian

government display violates the Establishment

Clause. Every Justice in County of Allegheny v. ACLU,

492 U.S. 573 (1989) joined an opinion citing a prominent Latin cross as an archetypal and “obvious” Establishment Clause violation. Every Justice in Capitol

Square Review & Advisory Board v. Pinette, 515 U.S.

753 (1995) agreed that giving preferential access to a

Latin cross on government property would violate the

Establishment Clause. Every Justice in McCreary

County v. ACLU, 545 U.S. 844 (2005) agreed that a solo

or prominent government display of a sectarian version of the Ten Commandments would violate the Establishment Clause. And in Salazar v. Buono, 559 U.S.

700 (2010), the plurality reaffirmed what was said by

Justice Kennedy in Allegheny, that the permanent

erection of a Latin cross on conspicuous government

property violates the Establishment Clause. Justice

Alito expressed no doubt, moreover, that the Establishment Clause would forbid an official World War I cross

on the National Mall. Id. at 728 (concurring).

I.A.2. Justices of this Court have been unanimous in recognizing the Latin cross as the preeminent

symbol of Christianity. The Circuits have likewise been

“masters of the obvious” on this point, and have uniformly found freestanding government cross monuments unconstitutional on the grounds that they exalt

Christianity.

Conceived as a mammoth “Cross of Calvary, as

described in the Bible” (J.A.428) and formally pronounced as a Cross “symbolic of Calvary” by the state

official at the Cross’s 1925 dedication ceremony, this

40-foot-tall Latin cross is without question, a Christian

symbol. Petitioners ask the Court to overlook that reality. They claim that the monument is “merely”

“shaped like a cross,” as if that were a coincidence (Legion Br.i; accord Comm’n Br.i); and they claim that the

Cross is a “secular” “symbol of the war” rather than a

Christian symbol (Legion Br.4; Comm’n Br.2, 5, 34).

That distortion should be rejected, not only because it

amounts to legal chicanery, but also because it works

the very kind of harm to religion that motivated the

Establishment Clause’s passage.

I.B.1. When the government prominently displays a large Latin cross as a war memorial, it does

more than just align the state with Christianity; it also

callously discriminates against patriotic soldiers who

are not Christian. Contrary to the Commission’s argument that the Latin cross has “a significant secular

meaning” as a symbol for “the fallen,” “irrespective of

their religion” (Comm’n Br.36, 24), Jews, Humanists,

Muslims, Atheists, Buddhists, Unitarians, and others

have made it clear, in this case and in others, that a

Latin cross war memorial signifies that their sacrifices

are unworthy of mention.

The Circuits are in complete agreement that the

Latin cross: (1) transcends mere commemoration and

promotes the Christian faith alone; (2) does not possess

an ancillary meaning as a secular war memorial;

(3) is not a generic symbol of death and sacrifice; and

(4) sends a strong message of exclusion when prominently displayed by the government to honor veterans.

Every Circuit to consider the constitutionality of a

government memorial cross—the Fourth, Seventh,

Ninth, and Tenth—held the cross at issue unconstitutional.

I.B.2. Buono is not to the contrary. The plurality

observed in dicta that the Latin cross is a common

headstone in overseas cemeteries. Government defendants have since cited that observation to argue that the

Latin cross, when used as a war memorial, is not a

Christian symbol, or even a religious symbol, but

merely a benign secular symbol of war that represents

Jews, Atheists, and Muslims alike. But Justice Alito

went out of his way to acknowledge that over 3,500

Jewish soldiers died in World War I and their graves

are marked not by crosses but by Stars of David. Every

Circuit that has addressed the issue since Buono has

also found a clear distinction between an individual

Christian headstone and a large governmentsponsored war memorial cross.

The Latin cross in this case, moreover, does not

evoke, nor was it intended to evoke, a small plain white

cross in a foreign battlefield. Instead, the symbol was

chosen to evoke “the Cross of Calvary, as described in

the Bible.” J.A.428.

I.B.3. If the government prevails, it will be a Pyrrhic victory indeed, at least for devout Christians. Allowing the government to recast the Latin cross as a

benign secular symbol of war denigrates the religion

that it symbolizes.

I.C. Every relevant contextual factor that this

Court has previously considered affirms that this

Cross dramatically conveys a message of governmental support for Christianity in violation of the Establishment Clause. Pet.App.28a. The 4-story “Calvary

Cross” was erected with the Town’s blessing on a prominent parcel of Town-owned land. Today it is owned,

extensively funded, actively used, promoted, and prominently displayed by the government. It stands alone

on the traffic island, dwarfing its surroundings. The

Cross is not displayed as an exhibit in a museum, on

private property, or in another location that might detract from the government’s having placed its imprimatur behind it. Indeed, rather than disassociate from

the Cross, the Commission and the Town held an elaborate “Rededication” ceremony to publicly sanctify the

Cross as a government war memorial. The length of

time this Cross has stood as a permanent government

tribute to Christian soldiers and Christian soldiers

alone has served to intensify the exclusion felt by religious minorities.

II.A. Because the case can be decided on uncontested Establishment Clause principles, Respondents

agree with the Commission that the Court need not

take up the Legion’s invitation to upend decades of

precedent by reconsidering the test enshrined in

Lemon.

But Respondents disagree that Town of Greece v.

Galloway, 572 U.S. 565 (2014) furnishes an “independently sufficient ground” to uphold a massive Latin

cross on the basis of “history and traditions.” Comm’n

Br.31-32. Our constitutional tradition, “from the Declaration of Independence” down to the present, has, as

Justice Scalia put it: “ruled out of order governmentsponsored endorsement of religion . . . where the endorsement is sectarian . . . for example, the divinity of

Christ.” Lee v. Weisman, 505 U.S. 577, 641 (1992) (dissenting; emphasis added).

“History and traditions” has never conferred an independent basis to uphold a practice under the Establishment Clause. This Court sustained legislative

prayer based on the sui generis reasons underlying its

long and unbroken history. And none of those reasons

support this Cross: (1) The Cross is not an internal

practice to accommodate lawmakers; (2) The Cross

aligns the government with Christianity and categorically excludes all other faiths; and (3) There is no long,

unbroken historical practice to speak of, and even if

there were, such history could not override the central

and absolute prohibition against government sectarian preferences.

II.B. Nor should the Court accept the Legion’s invitation to overturn seven decades of Establishment

Clause precedents by holding that the Establishment

Clause does nothing but require the government to

avoid religious coercion. Coercion is certainly a clear

example of an Establishment Clause violation, but no

more so than sectarian favoritism.

Even Lemon’s harshest critics have rejected what

the Legion proposes. Justice Scalia, joined by Chief

Justice Rehnquist, and Justices White and Thomas,

agreed that government endorsement of a sectarian

monument violates the Establishment Clause “even

when no ersatz, ‘peer-pressure’ psycho-coercion is present.” Lee, 505 U.S. at 641 (dissenting). Chief Justice

Rehnquist, Justice White, and Justice Scalia agreed

with Justice Kennedy that the Establishment Clause

plainly forbids the government from permitting the

permanent erection of a large Latin cross on the roof

on city hall. Allegheny, 492 U.S. at 661 (concurring and

dissenting).

III.A. If the Court reaches the Lemon question,

it should reaffirm Lemon. Lemon was a carefully considered 8-1 opinion of then-Chief Justice Burger that

distilled the entirety of the Court’s Establishment

Clause jurisprudence into a workable analysis. 403

U.S. at 612-13. The test has consistently been applied

by this Court in religious display cases, yielding consistent results both in this Court and in the Circuits.

III.B. The government’s prominent Cross runs

afoul of the Lemon test because it endorses Christianity over all other religions (I.C.) and religion over nonreligion. Pet.App.19a-31a.

IV.A. An affirmance will not doom other war memorials. The Bladensburg Cross is an aberration and

no other monument like it has been identified. Petitioners and their amici claim there are “hundreds” of

war memorials that include a cross. In reality, they

have identified only a handful of freestanding cross

monuments and all but a few are in cemeteries, museums, or other multi-faith complexes. The two smaller

cross monuments in Arlington, for instance, are set

amidst approximately 200 other monuments and

memorials and are surrounded by a diverse array of

religious symbols, whereas here, Christianity is singularly and overwhelmingly represented.

IV.B. Nor would an affirmance portend the “mutilation” of the Cross. Quite the opposite, relocating the

Cross away from the pollutants that are currently

causing its demise may be the Cross’s only chance of

survival.

------------------------------------------------------------------

ARGUMENT

The Bladensburg Cross violates fundamental Establishment Clause principles irrespective of the Lemon test.

The “central meaning” of the Establishment

Clause is that the government cannot favor or align itself with a single religion. Lee, 505 U.S. at 590; Larson

v. Valente, 456 U.S. 228, 244 (1982). The Bladensburg

Cross does precisely that, because the Latin cross is

not only a symbol of Christianity, but the preeminent

symbol of that religion and that religion alone.

As such, Respondents agree with the Commission

(at 22) that this case can be decided upon uncontested

Establishment Clause principles without taking up

the Legion’s invitation to upend decades of precedent

by reconsidering the test enshrined in Lemon. See Lee,

505 U.S. at 587 (rejecting invitation “to reconsider our

decision in Lemon” because the case could be decided

upon an uncontested principle). See also Dickerson v.

United States, 530 U.S. 428, 443 (2000) (“Whether or

not we would agree with Miranda’s reasoning and its

resulting rule, were we addressing the issue in the first

instance, the principles of stare decisis weigh heavily

against overruling it now.”).

A. The central principle of the Establishment Clause is that the government cannot align itself with any one religion.

Although Justices have differed about whether

and to what extent the Establishment Clause forbids

governmental preferences for religion generally, there

is no disagreement that the Clause “means at the very

least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions).”

Allegheny, 492 U.S. at 605 (emphasis added). See

Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 748 (1994) (Scalia, J., dissenting) (“I have always believed . . . that the

Establishment Clause prohibits the favoring of one religion over others.”).

Our Framers knew “from bitter personal experience,” that “whenever government had allied itself

with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary

beliefs.” Engel v. Vitale, 370 U.S. 421, 429, 431 (1962).

That same history also “showed that many people had

lost their respect for any religion that had relied upon

the support of government to spread its faith.” Id. at

431.

In the Court’s landmark decision applying the Establishment Clause to the states, both the majority

and dissent relied on that history to unanimously conclude that the Clause forbids, at a minimum, actions

that “prefer one religion over another.” Everson v.

Board of Education, 330 U.S. 1, 15 (1947). See id. at 3132 (Rutledge, J., dissenting). Since Everson, this has remained an uncontested bedrock of Establishment

Clause jurisprudence. See Epperson v. Arkansas, 393

U.S. 97, 104, 106 (1968) (unanimously concluding that

the “First Amendment mandates governmental neutrality between religion and religion” and calling the

prohibition “absolute”); Zorach v. Clauson, 343 U.S.

306, 314 (1952). Indeed, the Court reiterated this essential principle as recently as last term in Trump v.

Hawaii, 138 S. Ct. 2392, 2417 (2018) (quoting Larson,

456 U.S. 228 for the proposition that “ ‘[t]he clearest

command of the Establishment Clause is that one religious denomination cannot be officially preferred

over another’ ”) (emphasis added).

As Justice Scalia explained, “our constitutional

tradition, from the Declaration of Independence and

the first inaugural address of Washington . . . down to

the present day,” has “ruled out of order governmentsponsored endorsement of religion . . . where the endorsement is sectarian . . . for example, the divinity of

Christ.” Lee, 505 U.S. at 641 (Scalia, J., dissenting;

emphasis added). He stated that the “Founders of our

Republic knew the fearsome potential of sectarian

religious belief to generate civil dissension and civil

strife.” Id. at 646. He concluded, joined by Chief Justice

Rehnquist, and Justices White and Thomas, that when

the government expresses a preference for one religion

over others, it violates the Establishment Clause “even

when no ersatz, ‘peer-pressure’ psycho-coercion is present.” Id. at 641.

Justice O’Connor agreed that “[w]hile general acknowledgments of religion need not be viewed by reasonable observers as denigrating the nonreligious, the

same cannot be said of instances ‘where the endorsement is sectarian.’ ” Elk Grove Unified Sch. Dist. v.

Newdow, 542 U.S. 1, 42 (2004) (O’Connor, J., concurring) (quoting Lee, 505 U.S. at 641 (Scalia, J., dissenting)). Justice Thomas agreed in Newdow “that the

Establishment Clause ‘bar[s] governmental preferences for particular religious faiths.’ ” Id. at 53-54

(Thomas, J., concurring) (quoting Rosenberger v. Rector

and Visitors of Univ. of Va., 515 U.S. 819, 855-56 (1995)

(Thomas, J., concurring) (recognizing the clear constitutional “defect” of extending government funding

“only to Christian sects”)). Justice Rehnquist, too, had

no doubt that the Clause was designed to bar the government “from asserting a preference for one religious

denomination or sect over others.” Wallace v. Jaffree,

472 U.S. 38, 113 (1985) (dissenting).

This particular command is not violated by “nonsectarian references to religion” such as “references to

God,” Allegheny, 492 U.S. at 603, nor is it violated by

non-denominational displays of the Ten Commandments, McCreary, 545 U.S. at 893-94 (Scalia, J.,

dissenting); id. at 909 (noting that, unlike the cross,

the “Ten Commandments are recognized by Judaism,

Christianity, and Islam alike”). But this command is

violated by a display that reflects an “allegiance to a

particular sect or creed.” Allegheny, 492 U.S. at 603-05.

1. The government violates the central

command of the Establishment Clause

when it places its imprimatur upon a

potently sectarian symbol such as the

Latin cross.

The absolute prohibition against sectarian favoritism applies with special force to religious displays.

“[B]ecause of their fixed quality, displays have caused

somewhat more concern than spoken words, which by

their nature are fleeting.” Newdow v. Roberts, 603 F.3d

1002, 1017 n.3 (D.C. Cir. 2010) (Kavanaugh, J., concurring). “Speakers, no matter how long-winded, eventually come to the end of their remarks; . . . monuments,

however, endure. They monopolize the use of the land

on which they stand and interfere permanently with

other uses of public space.” Pleasant Grove City v. Summum, 555 U.S. 460, 479 (2009). “Governments have

long used monuments to speak to the public,” often “to

remind their subjects of their authority and power.” Id.

at 470.

It is firmly settled that, irrespective of the Lemon

test, the “government’s use of religious symbols is

unconstitutional if it effectively endorses sectarian

religious belief.” Pinette, 515 U.S. at 765. And the “more

sectarian the display, the closer it is to the original targets of the [C]lause.” ACLU v. St. Charles, 794 F.2d 265,

271 (7th Cir. 1986) (Posner, J.).

As Justice Scalia wrote in Pinette, “giving sectarian religious speech preferential access to a forum

close to the seat of government (or anywhere else for

that matter) would violate the Establishment Clause.”

515 U.S. at 766. He explained that the crèche in Allegheny was unconstitutional—despite being temporary

and “privately sponsored” like the Klan’s cross in Pinette—because the courthouse staircase was not “open

to all on an equal basis, so the County was favoring

sectarian religious expression.” Id. at 764 (citing Allegheny, 492 U.S. at 599-600, & n.50).

In McCreary, Justice Scalia likewise had no doubt

that the Establishment Clause would prohibit “governmental endorsement of a particular version of the Decalogue as authoritative.” 545 U.S. at 894, & n.4

(dissenting). He further indicated that the government’s promotion of a display invoking “Jesus Christ”

would certainly be unconstitutional too. Id. at 897. Justices Thomas, Kennedy, and Chief Justice Rehnquist

joined the part of his dissent that implied that “a solo

display of the Ten Commandments [that] advances any

one faith” would be unconstitutional. Id. at 909, & n.12.

Thus, every Justice in McCreary agreed that a prominent sectarian display would violate the Establishment Clause. Id. at 869 (majority); id. at 883 (O’Connor,

J., concurring); id. at 894 n.4 (Scalia, J., dissenting); id.

at 909, & n.12 (Scalia, Thomas, Kennedy, JJ.,

Rehnquist, C.J., dissenting).

A permanent sectarian monument also stands in

sharp contrast to a seasonal display of a secularized

holiday exhibited for a matter of weeks, rather than in

perpetuity. Thus, in Allegheny, although Justices Kennedy, White, Scalia, and Chief Justice Rehnquist would

have upheld the temporary, privately-sponsored crèche

at issue, they admonished that a conspicuous permanent Latin cross would not meet the same fate and this

was irrespective of whether Lemon applied:

I doubt not, for example, that the Clause forbids a city to permit the permanent erection

of a large Latin cross on the roof of city hall.

This is . . . because such an obtrusive yearround religious display would place the government’s weight behind an obvious effort to

proselytize on behalf of a particular religion.

492 U.S. at 661 (concurring in part and dissenting in

part; emphasis added); accord Buono, 559 U.S. at 715

(plurality); Newdow, 603 F.3d at 1017 n.3 (Kavanaugh,

J., concurring).

In Buono, the plurality reiterated that “ ‘the [Establishment] Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of

city hall.’ ” 559 U.S. at 715 (quoting Allegheny, 492 U.S.

at 661 (Kennedy, J.)). The plurality contrasted this “extreme” example with the 6-foot-tall remote cross at issue, opining it was “not an attempt to set the

imprimatur of the state on a particular creed.” Id.

Justice Alito reasoned that “in this part of the country

. . . boundaries between Government and private land

are often not marked.” Id. at 724-25 (concurring). Private citizens placed “their monument on that spot, apparently without obtaining approval from any federal

officials, and this use of federal land seem[ed] to have

gone largely unnoticed for many years in all likelihood

due to the spot’s remote and rugged location.” Id. (emphasis added). It would be different had the cross been

constructed as “an official World War I memorial on the

National Mall.” Id. at 728.

This case does not involve a public forum for private, fleeting speech as in Pinette. Cf. Town of Greece,

572 U.S. at 582 (“Once [the government] invites prayer

into the public sphere, government must permit a

prayer giver to address his or her own God or gods as

conscience dictates.”). Nor does it involve an ephemeral display of a secularized national holiday (Allegheny) or a privately-maintained metal-pipe cross in

the middle of the desert (Buono). And it most certainly

does not involve a “benign” symbol that honors all veterans “irrespective of their religion.” Comm’n Br.19, 24.

This case involves an “imposing 40-foot, 16-ton” permanent Latin cross (J.A.1420) towering over a heavilytrafficked intersection that marks the entrance to

town. Pet.App.6a, 8a, 54a.

2. The Latin cross is not a secular symbol that represents Islam, Judaism,

Atheism, and Christianity alike.

In no way is the Latin cross a “benign” “secular”

symbol, honoring Christians and non-Christians alike.

Comm’n Br.19, 24, 48. The Latin cross is an “especially

potent sectarian symbol,” Pinette, 515 U.S. at 776

(O’Connor, J., concurring; emphasis added), that “proselytize[s] on behalf of a particular religion.” Allegheny,

492 U.S. at 661 (Kennedy, J., concurring and dissenting).

The potent sectarian meaning of the Latin cross is

so “obvious” that in Allegheny, all nine Justices joined

opinions citing it as a quintessential example of an unconstitutional display. See id. (Blackmun, J., joined by

Brennan, Marshall, Stevens, and O’Connor, JJ.)

(adornments could not “negate the endorsement of

Christianity conveyed by the cross”); id. at 661 (Kennedy, J., concurring and dissenting, joined by

Rehnquist, C.J., White, and Scalia, JJ.) (a large permanent prominently-displayed cross would place the

“government’s weight behind an obvious effort to proselytize on behalf of a particular religion”).

Every Justice in Pinette agreed that the Latin

cross is a sectarian symbol rather than a “benign” ecumenical invocation. 515 U.S. at 760, 766 (Scalia, J.,

joined by Rehnquist, C.J., O’Connor, Kennedy, Souter,

Thomas, and Breyer, JJ.) (Latin cross was “sectarian

religious speech”); id. at 771-72 (Thomas, J., concurring) (the cross is “one of the most sacred of religious

symbols”); id. at 776 (O’Connor, J., concurring, joined

by Souter and Breyer, JJ.) (the “cross is an especially

potent sectarian symbol”); id. at 792 (Souter, J., concurring) (it is “the principal symbol of Christianity around

the world”); id. at 798, n.3 (Stevens, J., dissenting) (“the

Latin cross is identifiable as a symbol of a particular

religion, that of Christianity”); id. at 817 (Ginsburg, J.,

dissenting) (because the cross is “ ‘the principal symbol

of Christianity’ ” the state may not permit “a display of

this character”).

No Justice in Buono contended that the Latin

cross was a symbol of death or sacrifice for a nonChristian religion. 559 U.S. at 725-26 (Alito, J., concurring) (“The cross is of course the preeminent symbol of

Christianity” and not a symbol to commemorate “Jewish soldiers”); id. at 747 (Stevens, J., dissenting) (“no

participant in this litigation denies that the cross

bears that [sectarian Christian] meaning”).

Circuit judges of all stripes have likewise been

“masters of the obvious,” Gonzales v. North Township

Lake County, 4 F.3d 1412, 1418 (7th Cir. 1993) (Bauer,

Rovner, Timbers), in finding that the “religious significance and meaning of the Latin or Christian cross are

unmistakable.” Robinson v. City of Edmond, 68 F.3d

1226, 1232 (10th Cir. 1995) (Anderson, Holloway,

Lucero; emphasis added); e.g., ACLU v. Rabun Cnty.

Chamber of Commerce, Inc., 698 F.2d 1098, 1103 (11th

Cir. 1983) (per curiam) (Tuttle, Kravitch, Johnson) (the

“latin cross is a universally recognized symbol of Christianity”).

As relevant here, Judge O’Scannlain joined his fellow panelists (Lay and Pregerson) in holding a war memorial cross unconstitutional on the grounds that the

“City’s use of a cross to memorialize the war dead may

lead observers to believe that the City has chosen to

honor only Christian veterans.” Separation of Church

& State Comm. v. City of Eugene, 93 F.3d 617, 626 (9th

Cir. 1996) (per curiam) (O’Scannlain, J., concurring).

Notable district court judges have also called a

spade a spade in cross cases. In striking down a large

war memorial cross on a Marine base, Judge Thomas

F. Hogan ruled: “The principal symbol of Christianity,

this nation’s dominant religion, simply is too laden

with religious meaning to be appropriate for a government memorial assertedly free of any religious message.” Jewish War Veterans v. United States, 695

F. Supp. 3, 15 (D.D.C. 1988).

Judge Carl Olaf Bue, Jr., a Nixon appointee and

World War II army captain, declared a war memorial

cross display (featuring a subordinate Star of David)

unconstitutional on the grounds that “the cross and

the Star of David are the primary symbols for Christianity and Judaism respectively” and “their primary effect is to give the impression that only Christians and

Jews are being honored by the county.” Greater Houston Chapter of ACLU v. Eckels, 589 F. Supp. 222, 23435 (S.D. Tex. 1984), reh’g denied, 763 F.2d 180 (5th Cir.

1985) (per curiam).

B. Using a Latin cross as a war memorial

does not make the cross secular; it makes

the war memorial Christian.

As the preeminent symbol of the Christian faith,

the government’s prominent display of the Latin cross

clearly aligns the government with Christianity. But

when the government displays the Latin cross as a

government war memorial, it does more than that; it

also “discriminat[es] against the beliefs of patriotic soldiers who [are not] Christian.” Allegheny, 492 U.S. at

615 n.61 (citing Eckels, 589 F. Supp. at 234).

1. Neither the Latin cross generally,

nor this Cross in particular, commemorates, honors, or respects nonChristian veterans.

The Commission maintains that the Latin cross

has “a significant secular meaning to commemorate

valor and sacrifice,” and honors all “the fallen,” “irrespective of their religion.” Comm’n Br.6, 24, 36. But

non-Christians are the arbiters of that question and

their voices leave no room for ambiguity. Jews, Humanists, Muslims, Atheists, Buddhists, Unitarians and others have made it clear, in this case and in others, not

only that the Latin cross does not honor them but that,

when used as a government war memorial, the cross

signifies that their sacrifices are unworthy even of

mention.

As the Jewish War Veterans of the United States

made emphatically clear in their amicus brief (at 2, 14)

in Buono (No. 08-472):

[T]he Government sends the unmistakable

message that it deems less worthy of honor

the sacrifices of non-Christian veterans, including the 250,000 Jewish service members

who answered America’s call to duty in World

War I . . . . It defies logic to suggest that the

Government would aim to remember Jewish

(or other non-Christian) veterans by displaying the symbol of Christianity.

They added: “This [sacrifice] analogy works only for

those who embrace the doctrine of atonement through

Christ’s crucifixion, and the comparison intended to

honor veterans’ sacrifices simultaneously reinforces

Christian beliefs about the nobility of Jesus’s crucifixion through association with brave Americans.” Id. at

8. Even the Legion conceded: “[T]he cross as a symbol

of death and sacrifice has its roots firmly in the cultural heritage of Christianity.” J.A.719 (emphasis

added).

For many Jews, the Latin cross not only symbolizes Christianity, but also the “outright oppression and

persecution of Jewish people.” Friedman v. Bd. of Cnty.

Comm’rs, 781 F.2d 777, 781 (10th Cir. 1985) (en banc);

id. at 781-82 (“The seal certainly does not memorialize

their ‘Christian heritage’ but rather that of those who

sought to extinguish their culture and religion.”).

The Council on American Islamic Relations, the

nation’s largest Muslim civil rights organization, submitted a motion to oppose the Bladensburg Cross on

the grounds that “Christian symbols do not represent

Muslim service members.” J.A.1596-98.6

The president of the Military Religious Freedom

Foundation, which represents “a myriad faith and nonfaith groups,” including “Jewish, Hindu, Sikh, Buddhist, [and] Native American spiritualist,” testified

that the “Bladensburg Cross does not represent our

tens of thousands of MRFF clients.” J.A.415-17.

Jason Torpy, Iraq War veteran and president of

Military Association of Atheists & Freethinkers, which

has over 4,000 members, testified: “My military service, as well as the service of other non-Christians . . .

is excluded and disrespected when a Christian cross is

presented as a public memorial.” J.A.326-28. See also

J.A.333-36.

Numerous other non-Christian veterans and their

families have made it known that the Bladensburg

Cross does not commemorate their sacrifices. E.g.,

J.A.1540-41 (“I’m a veteran with a purple heart . . . and

an atheist. Guess I’m not included in those honored.”);

J.A.1538 (“My son was a soldier. He was not a christian.

Why was his contribution any less valuable than

See also Robin Wright, Humayun Khan Isn’t the Only Muslim American Hero, The New Yorker (Aug. 15, 2016), https://

bit.ly/2D9oPV3 (“So many of us [Muslims] experience a form of

P.T.S.D. because of a feeling we are not considered equal to our

[Christian] colleagues.”).

anyone else’s?”); J.A.1537 (“I am a disabled combat Marine. I served with Muslims, Christians, atheists, even

a Satanist and a Wiccan. So, why should it only represent [C]hristians?”); C.A.App.3262 (“I’m a veteran and

an Atheist. How does this show reapect [sic] for my service in any way?”).

Well before the Fourth Circuit concluded that a

memorial cross “only holds value as a symbol of death

and resurrection because of its affiliation with the crucifixion of Jesus Christ” (Pet.App.20a-21a), the Circuits were already in firm agreement that the Latin

cross “transcend[s] mere commemoration” and promotes the “Christian faith” alone (Harris v. City of

Zion, 927 F.2d 1401, 1415 (7th Cir. 1991)); that the

Latin cross “does not possess an ancillary meaning as

a secular or non-sectarian war memorial” (Trunk v.

City of San Diego, 629 F.3d 1099, 1116 (9th Cir. 2011));

and that because the cross is “not a generic symbol of

death” but rather “a Christian symbol of death that

signifies or memorializes the death of a Christian,”

American Atheists, Inc. v. Duncan, 616 F.3d 1145, 1161

(10th Cir. 2010); the government’s use of the Latin

cross to honor veterans sends a strong message of “exclusion.” Trunk, 629 F.3d at 1124-25.

The Ninth Circuit reiterated the point in Buono v.

Norton, 371 F.3d 543, 549 n.5 (9th Cir. 2004), citing

Judge O’Scannlain’s concurrence in Eugene, supra,

when it recognized that despite a sign designating the

cross as a war memorial, and “indeed perhaps because

of it,” a government war memorial cross communicates

the objective message that it has “ ‘chosen to honor only

Christian veterans.’ ” (emphasis added).

Indeed, the lower courts have decided 33 cross

cases (18 of which are Circuit decisions) (Br. in Opp.1518 (17-1717))—and every case involving a cross displayed as a government memorial held the display unconstitutional. Trunk, 629 F.3d at 1123; Duncan, 616

F.3d 1145; Buono, 371 F.3d 543; Eugene, 93 F.3d 617;

Ellis v. La Mesa, 990 F.2d 1518 (9th Cir. 1993); Gonzales, 4 F.3d 1412; American Humanist Association v.

Lake Elsinore, 2014 U.S. Dist. LEXIS 25180 (C.D. Cal.

2014); Jewish War Veterans, 695 F. Supp. 3; Eckels, 589

F. Supp. 222. See also Kondrat’yev v. City of Pensacola,

2017 U.S. Dist. LEXIS 203588, at *21 n.4 (N.D. Fla.

June 19, 2017) (Vinson, J.), aff ’d, 903 F.3d 1169 (11th

Cir. 2018) (finding argument that “the Bayview Cross

is a war memorial” irrelevant in light of the “numerous

appellate and district court cases ordering the removal

of war memorial crosses”).

This Court, too, has acknowledged the obvious: A

government-sponsored Latin cross war memorial favors Christians while “discriminating against the beliefs of patriotic soldiers who [are not] Christian.”

Allegheny, 492 U.S. at 615 n.61 (citing Eckels, supra).

2. The Latin cross is not a universal secular World War I symbol and, even if

it were, that’s not why it was chosen

here.

Petitioners claim that the Cross should be deemed

secular because First World War overseas cemeteries

consist of rows of little white cross headstones.

Comm’n Br.2, 35; Legion Br.55-56. That argument is

flawed in two respects. First, and obviously, the “mere

fact that the cross is a common symbol” in cemeteries

“does not mean it is a secular symbol.” Duncan, 616

F.3d at 1161-62. “The Latin cross can, as in Flanders

fields, serve as a powerful symbol of death and memorialization, but it remains a sectarian, Christian symbol.” Trunk, 629 F.3d at 1116. Second, this Cross

(unlike the cross in Buono), was not designed to mimic

World War I headstones; it was chosen precisely because of, not in spite of, its Christian meaning.

i. In World War I cemeteries, a cross

marks a Christian soldier’s grave

and a Star of David marks a Jewish soldier’s grave.

Petitioners rely on dicta from Buono pertaining to

overseas headstones to support their contention that

the Latin cross is a non-Christian symbol of war.

Comm’n Br.34; Legion Br.55-56. This is what Justice

Kennedy wrote:

Here, one Latin cross in the desert evokes far

more than religion. It evokes thousands of

small crosses in foreign fields marking the

graves of Americans who fell in battles, battles whose tragedies are compounded if the

fallen are forgotten.

559 U.S. at 721. The assertion lacked any citation.

Justice Alito, on the other hand, went out of his

way to clarify that the Latin cross does not reflect “the

religious diversity of the American soldiers who gave

their lives in the First World War.” Id. at 726 (concurring). He stressed that more “than 3,500 Jewish soldiers gave their lives for the United States,” and that

their graves are marked with a “white Star of David.”

Id.

Since then, three Circuits (the Fourth, Ninth, and

Tenth) have addressed challenges to memorial crosses.

Each undertook an extensive analysis of expert reports

and history books and concluded that Justice Kennedy’s assertion was somewhat misleading.

As the Ninth Circuit explained, the “thousands of

small crosses” referenced in Buono “serve as individual

memorials to the lives of the Christian soldiers whose

graves they mark, not as generic symbols of death and

sacrifice,” and “not [as] a universal monument to the

war dead.” Trunk, 629 F.3d at 1113, 1116 n.18 (emphasis added).7 The Tenth Circuit similarly rejected the

As discussed in IV.A.1., the several other freestanding cross

war memorials do not “lead to the conclusion that the cross has

become a secularized representation of war memory” either.

Trunk, 629 F.3d at 1114-15 (also rebuffing argument that there

argument that “the cross has become a secular symbol

of death” because “fallen Jewish service members are

memorialized instead with a Star of David.” Duncan,

616 F.3d at 1161. Accord Pet.App.21a.

The Fourth Circuit agreed with the other Circuits

that “a Latin cross serves not simply as a generic

symbol of death, but rather a Christian symbol.”

Pet.App.21a. The court observed that the headstones

of the fallen in Arlington include separate symbols for

Buddhism, Wicca, Islam, Judaism, and Atheism, underscoring the fact that the Latin cross is not the

symbol of death or sacrifice for non-Christians.

Pet.App.25a-26a, 35a.

Moreover, the panel noted, “crosses used on World

War I battlefields were individual—rather than universal—memorials to the lives of Christian soldiers.”

Pet.App.21a. In finding the respective displays unconstitutional, all three post-Buono Circuits recognized

that when the Latin cross is prominently displayed as

a government war memorial, it “suggests that the government is so connected to [that] particular religion

that it treats that religion’s symbolism as its own, as

universal. To many non-Christian veterans, this claim

of universality is alienating.” Trunk, 629 F.3d at 112425.

In Buono, Justice Alito referred to photographs depicting both the Star of David and the Latin cross and

opined that this “presumably reflected the religious

are “countless” freestanding cross war memorials, finding fewer

than ten).

makeup of the Armed Forces at the time of the First

World War.” 559 U.S. at 726 n.9 (concurring). In fact,

our armed forces included not just 250,000 Jews, but

also an estimated 22,500 Mormons,8 12,000 Native

Americans,9 5,000 Muslims,10 Chinese-American Buddhists, Japanese-American Shinto, atheists, and of

course others. J.A.324-25, 108-09. None of these groups

embrace the Latin cross as their symbol of death and

sacrifice. E.g., Pet.App.35a; J.A.79.11

Rather, the Star of David reflects the successful

advocacy of the Jewish Welfare Board in protesting

crosses, which had offensively been placed over some

their dead. J.A.1200-02. An “American doughboy wrote

in distress when graves of his fallen comrades were

marked with Cross instead of Star of David headboards observing, ‘Yesterday, I visited the cemetery

where our dead comrades laid to rest, and there were

Danielle Gorman, The Prophet with 6 Sons in WWI + More

Latter-day Saint Connections Makes You Think, LDS Living (Nov.

10, 2018), https://bit.ly/2HjEJAe.

Olivia B. Waxman, ‘We Became Warriors Again’: Why World

War I Was a Surprisingly Pivotal Moment for American Indian

History, Time Magazine (Nov. 23, 2018), http://time.com/5459439/

american-indians-wwi/.

Vivek Chaudhary, The forgotten Muslim heroes who fought

for Britain in the trenches, The Guardian (Nov. 11, 2017), https://

bit.ly/2IGU9yN.

Notably, the French government offered three gravemarkers: a Christian Cross, a plain headstone with no religious symbolism, and a Muslim headstone with a curved, Moorish style top.

J.A.165.

our Jewish boys, the sons of Moses and Jacob with a

cross at the head of the their graves.’ ” J.A.107.

At the 1924 Congressional debate over replacing

the temporary gravemarkers in those cemeteries, the

Executive Director of the Jewish Welfare Board, Mr.

H.L. Glucksman, testified on behalf of the “entire

Jewry of America” that crosses did not honor Jewish

soldiers and that they would prefer a plain slab.

J.A.1199-1200. He urged, however, that “if any religious symbol is erected over the graves, then Judaism

should have its symbol over the graves of its dead.” Id.

(emphasis added). In turn, the National Catholic Welfare Conference testified that the Latin cross should be

used over the 3,355 “Catholic men” who died “so their

graves could be blessed.” J.A.1198-99. See also

J.A.1212-13 (seeking cross for “our Christian solders”);

J.A.1185 (referring to “the cross of the Protestants and

Catholics”).

Not surprisingly, the Commission ignores the Jewish Welfare Board’s testimony. Instead, it (at 6) selectively quotes part of a letter from a member of the

American Battle Monuments Commission who stated

it was her understanding that, “while Orthodox Jews

desired that the Star of David mark the graves of their

dead, some Reformed Jews desired ‘that no distinction

be made between them and their Christian comrades.’ ” Michael Sledge, Soldier Dead: How We Recover,

Identify, Bury, & Honor Our Military Fallen 205 (2005).

This simply coincides with the Jewish Welfare Board’s

preference for a uniform slab (J.A.1201);12 it does not

support the Commission’s assertion that “[s]everal

Jewish families elected the cross for their loved ones’

graves.” Comm’n Br.6.

To this day, Jewish veterans continue to protest

war memorial cross displays, making clear that, for

them, the cross has not morphed into a benign secular

symbol that honors their sacrifices. See Trunk, 629

F.3d at 1105; Jewish War Veterans, 695 F. Supp. 3; Eckels, 589 F. Supp. 222.

ii. The Bladensburg Cross does not

evoke a World War I headstone

nor was it intended to.

The crosses in overseas cemeteries are 3- to 4-foottall plain white marble Latin crosses. J.A.944-47, 1188.

The cross in Buono was similarly a 5-foot-tall “plain

unadorned white cross,” and thus evoked the “image of

the white crosses, row on row” in overseas cemeteries.

559 U.S. at 725 (Alito, J., concurring; emphasis added).

But the Bladensburg Cross is not small, plain, unadorned or white. It is huge, measuring 40-foot-tall

(J.A.914); it is thick concrete aggregate with “light

brown with a reddish brown border” (J.A.914, 1372);

and it is adorned with “decorative bands.” J.A.1350.

See J.A.701, 930. And it is the “town’s most prominent

symbol.” J.A.868. It thus evokes “a message of aggrandizement and universalization of religion, and not the

The Quartermaster General also advocated for the slab.

J.A.1175, 1231, 1439.

message of individual memorialization and remembrance that is presented by a field of gravestones.”

Trunk, 629 F.3d at 1116 n.18. Pet.App.31a.

That the Bladensburg Cross looks nothing like

those overseas crosses is not surprising because that

was not the intent of the donors. The committee that

oversaw its construction—aptly named the “committee

on the Calvary Cross Memorial” (J.A.431)—intended to

build a “mammoth cross, a likeness of the Cross of Calvary, as described in the Bible.” Pet.App.7a; J.A.428.

This intention was made explicit in numerous contemporaneous newspaper articles (Pet.App.73a; J.A.42833) and by the state representative who, at the 1925

dedication ceremony, proclaimed the Cross to be “symbolic of Calvary.” Pet.App.59a; J.A.216-17.

The Cross’s designer, John Earley, did not attempt

to mirror overseas gravemarkers. Rather, the “Cross

borrowed from the mosaic and thin-panel methods developed at the Shrine [of the Sacred Heart, a Roman

Catholic parish] . . . [c]onstructed concurrently with

their string of church commissions.” J.A.1349-50;

C.A.App.2485-86.

Petitioners ignore all of this; instead, they rely on

a single statement made by the fundraising committee’s second treasurer a year after the Cross’s groundbreaking, who referred to the Cross as a proxy for her

son’s grave when she was soliciting funds from a congressman. Comm’n Br.10; Legion Br.5. That mercenary

plea from a single individual (whose son is not even

named on the Cross (J.A.145, 989, 1025)) does nothing

to negate the Cross’s patently sectarian meaning as a

“Calvary Cross.” And the Commission’s attempt (at 38)

to dismiss “Calvary” as a meaningless term of older

times is unavailing. See Town of Greece, 572 U.S. at 579

(“The decidedly Christian nature of these prayers must

not be dismissed as the relic of a time when our Nation

was less pluralistic than it is today.”).

Moreover, not only was the memorial not intended

to mimic overseas World War I graves, but the Commission has since rededicated the Cross as a war memorial for all veterans of all wars and the Town has

treated it as such. J.A.191-99, 223-25, 554, 868. And the

Commission doubled down on the Cross’s Christian origins by inviting a Catholic priest to deliver prayers at

the rededication ceremony. J.A.195, 199-202.

3. Allowing the government to redefine the meaning of the Latin cross

as a “secular” and “benign” symbol

of all “the fallen”—to represent the

sacrifices of Atheists and Muslims

alike—would degrade religion in

the very ways the Founders feared.

Allowing the government to co-opt a deeply sacred

Christian symbol for its own purposes contravenes the

Establishment Clause’s “first and most immediate

purpose,” which “rested on the belief that a union of

government and religion tends to destroy government

and to degrade religion.” Engel, 370 U.S. at 431 (emphasis added).

The Founders were concerned about two forms of

degradation. First, they feared that the union of government and religion would leave the impression that

the endorsed faith was not strong enough to flourish

without government support. As Thomas Jefferson observed, governmental religious favoritism “tends only

to corrupt the principles of that very Religion it is

meant to encourage, by bribing with a monopoly of

worldly honours and emoluments, those who will externally profess and conform to it.”13 Justice Jackson

captured the corollary of this principle when he observed that it “is possible to hold a faith with enough

confidence to believe that what should be rendered to

God does not need to be decided and collected by Caesar.” Zorach, 343 U.S. at 324-25 (Jackson, J., dissenting).

Second, the Founders were concerned that a union

with government would strip the favored religion of its

potency and water it down into a pablum for the

masses. See School Dist. of Grand Rapids v. Ball, 473

U.S. 373, 385 (1985) (such a union taints the favored

religion “with a corrosive secularism”). “It is not only

the nonbeliever who fears the injection of sectarian

doctrines and controversies into the civil polity, but in

as high degree it is the devout believer who fears the

secularization of a creed.” Sch. Dist. of Abington Twp.

v. Schempp, 374 U.S. 203, 259 (1963) (Brennan, J., concurring). “The favored religion may be compromised as

Thomas Jefferson, The Virginia Statute for Religious Freedom (Jan. 16, 1786), reprinted in FOUNDING THE REPUBLIC: A DOCUMENTARY HISTORY 94-95 (John J. Patrick ed., 1995).

political figures reshape the religion’s beliefs for their

own purposes.” Lee, 505 U.S. at 608 (Blackmun, J., concurring). Keeping religion out of the government’s

hands best enables religion to “flourish according to

the zeal of its adherents and the appeal of its dogma.”

Zorach, 343 U.S. at 313.

Thus, as the Fourth Circuit rightly observed, allowing the Commission to display the Latin cross to

symbolize “anything other than Christianity may be

deemed offensive to Christians.” Pet.App.21a. Reverend Brian Adams, pastor of Mount Rainier Christian

Church, expressed this very sentiment in 2012 about

the Bladensburg Cross:

[I]t is the symbol of the son of God dying

peacefully . . . . I believe that using the cross

as a symbol of what our military did is blasphemy, equivalent to taking the Lord’s name

in vain, using the cross where God and Christ

would not want it to be used. The [Bladensburg] Cross is there as a Christian symbol.

J.A.700-04. Accord Eckels, 589 F. Supp. at 234 n.16

(“Reverend Schulman, and Reverend Stevens testified

that religious symbols in a county park have a detrimental effect on both Christianity and Judaism.”);

J.A.417, Pet.App.89a-93a; Vatican Radio, Pope says the

Cross is the gate of salvation, prays for youths after

Guatemala blaze, Abouna.org (Mar. 12, 2017), https://

bit.ly/2Cn0tFM (“[t]he Christian Cross is not something to hang in the house ‘to tie the room together’ . . .

or an ornament to wear”).

This also precipitated Judge Winn’s plea in oral

argument (at 31:16-32:00), in response to the Legion’s

statement that the Latin cross “can also acquire secular significance,” that “I would hope you don’t water it

down too much.” That is the precise aim of the Commission’s demand, which is that it be allowed to “alter[ ] [the Latin cross’s] exclusively sectarian meaning”

(at 16) by having it redefined as a “secular” and “benign” symbol of “military valor” for Atheists, Muslims,

and Jews alike (at 2, 21, 24, 34).

The first form of degradation—the loss of “respect

for any religion” that relies “upon the support of government,” Engel, 370 U.S. at 431—also looms here. A

leading Methodist clergyman warned over fifty years

ago that the effect of allowing the government to display “holy things in public places” is “often that of a

television commercial on a captive audience—boredom

and resentment.”14 Or, as Justice Kennedy observed,

“[to] place these religious symbols in a common hallway or sidewalk, where they may be ignored or even

insulted, must be distasteful to many who cherish their

meaning.” Allegheny, 492 U.S. at 678 (Kennedy, J., concurring and dissenting; emphasis added). E.g., Steve

Newton, Nativity removed; governor says it ‘mocks

Christians’, USA Today (Dec. 23, 2015), https://bit.ly/

2CHfmEp; Ashitha Nagesh, Woman gets grumpy

complaint for festive ‘dragon nativity’ scene, BBC

News (Dec. 20, 2018), https://bbc.in/2TkDKkA; Laurel

Dean M. Kelley, Beyond Separation of Church and State, 5

J. Church & State 181, 190-91 (1963), https://www.jstor.org/stable/

23913258.

Wamsley, Satanic Sculpture Installed At Illinois

Statehouse, Just In Time For The Holidays, NPR (Dec.

4, 2018), https://n.pr/2Rz1ukj. See also C.A.App.3237.

C. Far from undercutting the government’s

imprimatur, the Cross’s context only aggrandizes it.

This Court’s cases make clear that the “[p]lacement of [a] cross on Government-owned land” is unconstitutional where it bears “the imprimatur of the

state.” Buono, 559 U.S. at 715; accord Pinette, 515 U.S.

at 763-64. Stated differently, a cross on public land is

unconstitutional where it connotes “an expression or

demonstration of [government] approval or support.”

Id.

In making that assessment, the relevant contextual considerations identified by this Court include: (1)

the extent of the government’s support (ownership,

funding, maintenance, etc.); (2) whether the display is

permanent or ephemeral; (3) the display’s prominence

(size, juxtaposition, dominance); (4) whether, if the

symbol has dual-secular meaning, it is integrated with

other items such that the secular meaning predominates; (5) the nature of the property; and (6) in a borderline case involving an item with both a secular and

religious meaning, whether its usage or absence of

prior complaints indicates that its secular meaning

predominates. See Buono, 559 U.S. at 720-21 (looking

to the degree of government ownership, knowledge and

involvement, size and visibility of the display, and

physical location); Van Orden v. Perry, 545 U.S. 677,

700-01 (2005) (Breyer, J., concurring) (relevant context

included prominence, type of property, type of symbol,

usage, and age); Allegheny, 492 U.S. at 598 (“the effect

of a crèche display turns on its setting”); id. at 661

(Kennedy, J., concurring and dissenting) (emphasizing

permanence and prominence as crucial factors).

In some cases, these considerations will yield an

“obvious” answer, as when the government places a

“large Latin cross on the roof of city hall,” id., or erects

a World War I cross on the National Mall. Buono, 559

U.S. at 728 (Alito, J., concurring). This, too, is one such

case. These factors overwhelmingly affirm the Fourth

Circuit’s finding that the monument “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.” Pet.App.31a.

1. The Cross was erected with the

Town’s blessing and has been owned,

funded, used, promoted, and prominently displayed by the government

for decades.

In Buono, the plurality suggested that the cross at

issue did not clearly bear the imprimatur of the state.

Private citizens had placed “their monument” in the

middle of the desert without “obtaining approval from

any federal officials,” and this use of federal land went

“largely unnoticed for many years” due to the rugged

terrain. 559 U.S. at 724-25 (Alito, J., concurring). In the

present case, the government’s imprimatur is unmistakable.

First, unlike in Buono, the Bladensburg Cross was

installed on Town property with the Town’s blessing

and involvement. Pet.App.7a, 56a-57a; J.A.64, 428,

462-63. Local, state, and federal officials actively participated in the Cross’s groundbreaking and dedication

ceremonies. Pet.App.7a, 39a, 56a-59a; J.A.433, 216-18.

Indeed, the “Cross has been the site of speeches by major state and county government officials” since its inception. J.A.1425. And for the past few decades, the

Town has been hosting and co-hosting events at the

base of the Cross. E.g., J.A.539-608.

Second, this Cross was erected because of its

Christian meaning and that meaning was broadcast

by the government. A state representative was the keynote speaker at the Cross’s dedication, and publicly

proclaimed the Cross to be “symbolic of Calvary.”

Pet.App.59a; J.A.442. Likewise, when the Commission

rededicated the Cross in 1985, it invited a Catholic

priest to deliver prayers and expressed a desire to “assimilate this relationship again.” Pet.App.62a; J.A.195.

Third, this Cross is owned and maintained exclusively by the government on government property. Cf.

Allegheny, 492 U.S. at 667 n.5 (Kennedy, J., concurring

and dissenting) (“Neither the crèche nor the menorah

at issue in this case is owned by a governmental entity.”); Lynch v. Donnelly, 465 U.S. 668 (1984) (crèche

displayed on private property).

Lastly, the Commission poured $100,000 of county

taxpayers dollars into the Cross in 1985, subsequently

spent an additional $17,000 on routine maintenance,

and recently earmarked $100,000 for another massive

renovation project. Pet.App.8a, 30a, 63a; J.A.292;

C.A.App.2134, 1698. This Court has never sanctioned

such extensive government funding for a religious display, let alone a massive sectarian monument. See also

Allegheny, 492 U.S. at 664 (Kennedy) (“[n]either the

city nor the county contributed significant amounts of

tax money”); Van Orden v. Perry, 351 F.3d 173, 176 (5th

Cir. 2003) (“the expenses ‘were borne exclusively by

the Eagles’ ” and “the monument requires virtually no

maintenance”), aff ’d, 545 U.S. at 682 (plurality); Lynch,

465 U.S. at 671 (“it cost the city $1,365” plus “$20 per

year”); cf. Stone v. Graham, 449 U.S. 39, 42-43 (1980)

(“the posted copies of the Ten Commandments are financed by voluntary private contributions”) (citations

omitted). Indeed, in Buono, the plurality stressed that

when that cross fell into disrepair, “community members repeatedly took it upon themselves to replace it.”

559 U.S. at 716 (emphasis added).

2. The Cross is a permanent, not ephemeral, monument.

Because this Latin cross is “viewed year-round,” it

also “brings together church and state in a manner

that suggests their alliance” even more ardently than

the unconstitutional crèche display in Allegheny. Harris, 927 F.2d at 1412. See Allegheny, 492 U.S. at 661,

664-65, n.3 (Kennedy, J., concurring and dissenting)

(distinguishing a “permanent,” “year-round” and “continual” Latin cross on city property from a temporary

crèche); Newdow, 603 F.3d at 1017 n.3 (Kavanaugh, J.,

concurring); Friedman, 781 F.2d at 782 (“This [cross] is

not like the crèche display upheld in Lynch.”); Gonzales, 4 F.3d at 1423 (the cross was “not seasonally displayed”).

3. The Cross is the Town’s most prominent monument.

Just as a permanent monument sends a more

forceful message of government approval than an

ephemeral one, a prominent one speaks more loudly

than an obscure one. Thus, Justice Kennedy saw an

“obvious” violation in the “obtrusive” placement of a

cross “on the roof of city hall.” Allegheny, 492 U.S. at

661 (concurring and dissenting); accord Buono, 559

U.S. at 715. Justice Alito expressed this same sentiment in Buono when he contrasted that remote cross,

“seen by more rattlesnakes than humans,” with one

constructed as “an official World War I memorial on the

National Mall.” Id. at 725, 728 (concurring).

The Court made a similar observation when it

struck down a crèche displayed in the lobby of a courthouse in Allegheny, 492 U.S. at 598. By “permitting the

‘display of the crèche in this particular physical setting,’ ” the Court found, “the county sends an unmistakable message that it supports and promotes the . . .

crèche’s religious message.” Id. at 600. For “[n]o viewer

could reasonably think that it occupies this location

without the support and approval of the government.”

Id. at 599-600.

Standing four stories tall over a busy highway median that marks the entrance to town (J.A.40-41, 764,

918), this Christian monolith is “the town’s most prominent symbol.” J.A.868. As in Allegheny, and unlike

Buono, no one could reasonably think that this

Cross “occupies this location without the support and

approval of the government.” Id. E.g., 23 CFR

§ 710.403(a); J.A.1484, 1501.

4. The Cross dominates its surroundings

and is not integrated into a larger display.

The Cross also clearly “dominates its surroundings.” Pet.App.31a; see J.A.44-47, 423-26, 764, 918, 931,

1514. It is thus incomparable to the small seasonal

crèche in Lynch, which was integrated into an array

consisting of, “among other things, a Santa Claus

house, reindeer pulling Santa’s sleigh, candy-striped

poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a

teddy bear, hundreds of colored lights, [and] a large

banner that reads ‘SEASONS GREETINGS.’ ” 465 U.S.

at 671. The Court found that, viewed with the rest of

the commercial display, the “inclusion” of a small nativity did not “taint” the city’s exhibit but merely represented a symbol of a secularized “National Holiday.”

Id. at 681-82, 686.

Even then, Lynch was a “difficult case.” Allegheny,

492 U.S. at 594. Justice O’Connor was the tie-breaking

vote, but she clarified that she only joined the majority

because, “by referring repeatedly to ‘inclusion of the

crèche’ in the larger holiday display,” the “Lynch majority recognized that the crèche had to be viewed in

light of the total display of which it was a part.” Id. at

624-25 (O’Connor, J., concurring) (emphasis added).

Moreover, the “cross unmistakably signifies Christianity” whereas the crèche is a “mixed case.” St. Charles,

794 F.2d at 270-72. “Christmas is a national holiday,

celebrated by nonobservant Christians and many nonChristians.” Id. But “the Latin cross has not lost its

Christian identity.” Id. Accord Allegheny, 492 U.S. at

664-65 (Kennedy, J., concurring and dissenting) (unlike a Latin cross, the crèche and menorah “have acquired a secular component”).

This 40-foot-tall Cross is thus readily distinguishable from the 6-foot-tall Ten Commandments upheld

in Van Orden. Not only are the Ten Commandments

nonsectarian, but they “have become an archetypal

symbol for law itself.” Green v. Haskell Cnty. Bd. of

Comm’rs, 574 F.3d 1235, 1248-49 (10th Cir. 2009) (Gorsuch, J., dissenting). And as with the display in Lynch,

the Van Orden display was added to an existing array,

totaling “17 monuments” of similar size “and 21 historical markers,” that, together, reflected “the state’s political and legal history.” 545 U.S. at 681-82, 688-90

(plurality). The plurality found that because the “Commandments have an undeniable [secular legal] historical meaning,” the “inclusion” of this “monument in

this group has a dual significance.” Id. at 681, 688-91

(emphasis added). Justice Breyer agreed that because

of its dual meaning, displaying the Ten Commandments with numerous similar-sized and similarthemed monuments suggested that the state intended

the “nonreligious aspects of the tablets’ message to predominate.” Id. at 701 (Breyer, J., concurring; emphasis

added).

But the Latin cross is a sectarian symbol and has

no “nonreligious” “connection” to our “Nation’s history

and government.” Pet.App.22a. In McCreary, both the

majority and the dissent agreed that a dominating or

solo display of a sectarian version of the Ten Commandments would violate the Establishment Clause.

545 U.S. at 894 n.4 (Scalia, J., dissenting). In striking

down the Decalogue, the majority observed that although the “courthouses contained other displays,”

there was no “suggestion that the Commandments display was integrated to form a secular display.” Id. at

869 n.16.15

Similarly, in Allegheny, while there were Santa

Claus figures and other secular decorations in the

courthouse, and even a “gallery forum” with “art and

other cultural exhibits,” there were no such decorations on the staircase. 492 U.S. at 581, & 598 n.48. The

“crèche, with its fence-and-floral frame” “was distinct.”

Justice Scalia dissented because the display was nonsectarian and the walls “were already lined with historical documents and other assorted portraits” and the Commandments, in

his view, had no “greater prominence.” Id. at 903 (Scalia, J., dissenting).

Id. Indeed, the “floral frame, like all good frames,

serve[d] only to draw one’s attention to the message

inside the frame.” Id. at 599. This Cross is not integrated with other monuments either; rather, quite unlike the Van Orden and Lynch displays, this Cross was

proposed, approved and erected in isolation, and stood

as the only monument in the area for much of its history, and it remains the only monument on the median.

Pet.App.22a-26a; J.A.40-53, 918, 984, 991-94.

Even if one considers monuments added in later

years to a separate parcel across the road, the Cross is

“by far the most prominent” clearly “overshadowing

the other monuments.” Pet.App.24a; J.A.44-47, 764,

931. It is the entire Town’s “most prominent symbol.”

J.A.868. And like the floral frame in Allegheny, the

“Cross’s central position” in the middle of the highway

on an island of its own “gives it a symbolic value that

intensifies the Memorial’s sectarian message.” Trunk,

629 F.3d at 1123-24. See J.A.764, 984; J.A.1348 (referring to the Cross today as the “centerpiece”).

5. The nature of the property on which

this Cross stands makes the government’s imprimatur unambiguous.

This Court has also considered the nature of the

property on which a display sits. “[A] typical museum

setting, though not neutralizing the religious content

of a religious painting, negates any message of endorsement of that content.” Lynch, 465 U.S. at 692

(O’Connor, J., concurring); accord Van Orden, 545 U.S.

at 742 (O’Connor, J., dissenting); Summum, 555 U.S. at

476 n.5. Similarly, a government display on private

land may carry less government imprimatur than one

on public land. Justice O’Connor, the fifth vote in

Lynch, clarified in Allegheny that she grounded her

Lynch decision in part on this ground. 492 U.S. at 62627. See also Buono, 559 U.S. at 720 (plurality).

This Cross is not an artifact displayed as an exhibit in a museum or other multi-faith complex such

as a cemetery (infra at IV.A.2.). Pet.App.94a. Cf. American Atheists, Inc. v. Port Authority, 760 F.3d 227, 233436 (2d Cir. 2014) (upholding “a particular artifact”

donated along with “more than 10,000 artifacts” displayed in museum); Trunk, 629 F.3d at 1115 n.16 (distinguishing the 1607 Cape Henry cross displayed as an

exhibit in historic Jamestown).

Rather, this solitary “Calvary Cross” was deliberately placed on Town property and remains alone on

the government traffic island as a governmentdedicated war memorial. No one is free to erect other

displays on that median. J.A.1484, 1501. And at no

point between the Town’s ownership and the Commission’s did the government attempt to disassociate itself

from the Cross. Cf. Rosenberger, 515 U.S. at 841-42

(“The University has taken pains to disassociate itself

from the private speech involved in this case.”).

6. The longevity of this Cross has intensified its exclusionary sectarian

meaning.

The amount of time this Cross has stood as the

“town’s most prominent symbol” (J.A.868) has

“serve[d] to intensify” the exclusion felt by religious

minorities. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290, 305 (2000). See J.A.697 (“I am an atheist who has

lived in Hyattsville for 15 years. I was always bothered

by the giant cross.”); C.A.App.3225 (“It infuses the populace with the idea that our government is Christian.”); C.A.App.3265 (“I guess that in Maryland

church and state are interchangeable.”); C.A.App.3279

(“I drive past this regularly; glad to see I’m not the only

one bothered by it.”); C.A.App.3250 (“I’m a second-class

citizen, and they want me to remember it.”). That sentiment is shared by both old-timers and newcomers.

E.g., J.A.698 (“[I] [just moved] 1.6 miles west of the

Bladensburg Cross” and as “a member of a religious

minority (Jewish),” “I am appalled to learn that the

cross is owned by the State.”); C.A.App.3242-43 (“I just

drove past this last week for the first time and was

shocked!”); C.A.App.451 (“when I [plaintiff Edwords]

first encountered it, it immediately struck me as not

proper. But . . . I didn’t see any reason to pursue the

matter until the San Diego case was settled.”).

Petitioners overreach when they argue that Justice Breyer’s concurrence in Van Orden holds that longevity is “determinative” regardless of how sectarian

or prominent the display may be. Comm’n Br.44; Legion Br.58. The “measure of the seriousness of a breach

of the Establishment Clause has never been thought

to be the number of people who complain of it,”

Schempp, 374 U.S. at 264 (Brennan, J., concurring), for

the “First Amendment does not allow an establishment

of religion merely because it is a popular establishment.” St. Charles, 794 F.2d at 275-76.

Nor should religious minorities have to shoulder

the burden of Establishment Clause policing. “The

Clause is more than a negative prohibition.” Pinette,

515 U.S. at 777 (O’Connor, J., concurring, joined by

Souter and Breyer, JJ.). Each day “brings a new duty

on the government’s part, and a corresponding new

right to seek vindication of the constitutional right in

question.” Pitts v. City of Kankakee, 267 F.3d 592, 596

(7th Cir. 2001).

Besides, Justice Breyer indicated that longevity

was a tie-breaker only in a difficult “borderline” case

involving a nonsectarian display that was not used for

“meditation” or “religious activity.” 545 U.S. at 700-03

(concurring). Of course, this “Calvary” cross is sectarian, has consistently been used for “prayer” during

services, and “[n]othing in the record indicates that

any of these services represented any faith other than

Christianity.” Pet.App.8a; e.g., J.A.218 (First Baptist

Church; St. Jerome’s Catholic Church); J.A.474 (St.

Luke’s Protestant Episcopal Church; St. James Catholic Church); J.A.477 (St. Luke’s); J.A.527 (same);

J.A.598 (Faith-Deliverance-Soul Saving Station);

J.A.610 (Father Chimiak St. Matthias Catholic

Church); J.A.187 (same); J.A.199-202 (same). See

McCreary, 545 U.S. at 869 (because a pastor “testified

to the certainty of the existence of God” during the Ten

Commandments’ dedication ceremony, the “reasonable

observer could only think that the Counties meant to

emphasize and celebrate the Commandments’ religious message”); Allegheny, 492 U.S. at 599 (crèche’s

use in annual Christmas-carol program dedicated to

“world peace and families of prisoners of war” only

served to “augment the religious quality of the scene”

because some of the carols were religious).

Equally central to Justice Breyer’s reasoning was

the fact that there was no evidence the delay in litigation was “due to a climate of intimidation.” 545 U.S. at

702 (concurring). There are many reasons why religious minorities would not want to be the face of a challenge to a popular Christian monument (as plaintiffs

or lawyers): “Suing a State over religion puts nothing

in a plaintiff ’s pocket and can take a great deal out,

and even with volunteer litigators to supply time and

energy, the risk of social ostracism can be powerfully

deterrent.” Id. at 747 (O’Connor, J., dissenting; emphasis added).

Those considerations are highly salient here. “[A]

person who dared bring a challenge to the Cross for

much of [its] 90 years would have faced possible rebuke.” Pet.App.23a-24a. Maryland’s blasphemy law,

which criminalized denouncing “our Saviour Jesus

Christ,” was enforced until 1970. West, 9 Md. App. 270.

Atheists were forbidden from holding public office until this Court intervened in 1961, and the state constitution still contains the provision. Pet.App.23a-24a.

And in the 1920s in Bladensburg, the Latin cross was

used by the Klan to intimidate Jews and other religious minorities. J.A.80, see J.A.117-21, 127, 495-96,

506, 518, 523.

Indeed, the “possible rebuke” has come to pass.

E.g., J.A.652, 682-90, 627-31; David Gonzales, Pensacola Man’s Facebook Post Targets AHA Lawyer In

Cross Case, Ignites Firestorm, ABC3 (June 22, 2017),

https://bit.ly/2RtBqeH (“Some attack Miller with derogatory names and gun emojis. One comment even

asks for violence wishing her death.”).

In sum, the Bladensburg Cross violates the central

premise of the Establishment Clause by aligning the

government (the Town and the Commission) with the

preeminent symbol of Christianity. That the Cross is a

war memorial only adds insult to injury.

II.

The “history” and “coercion” tests advocated by Petitioners and their amici have

little to commend themselves and, in any

event, would not change the outcome here.

The Commission does not urge this Court to jettison the Lemon test, but it does argue that Town of

Greece furnishes a “second, independently sufficient

ground” to uphold this Christian monolith on the basis

of “history and tradition.” Comm’n Br.22, 32-33. The

Legion (at 53), in turn, demands a cataclysmic overhaul in Establishment Clause jurisprudence, asking

the Court to replace Lemon with a “coercion test”

that would dismantle not just the Lemon test but

the entirety of this Court’s Establishment Clause

jurisprudence, beginning with Everson. Accord U.S.

Amicus Br.13-16. The Legion contends that “passive

displays like the Peace Cross will almost never be coercive precisely because they are ‘passive.’ ” Legion

Br.53. Thus, the Legion is demanding a categorical rule

that gives the greenlight to virtually all religious displays, regardless how sectarian, conspicuous, contemporary, or religiously motivated. These arguments are

as “seismic” as they are “unconvincing.” McCreary, 545

U.S. at 861.

A. The “history” test is unworkable and

unprincipled, has been repeatedly rejected by this Court, and is in any event

met here.

1. Town of Greece did not modify the legal standard for legislative-prayer,

let alone for Establishment Clause jurisprudence generally.

The argument that Town of Greece “held that a

display” is constitutional if it “fits within a longstanding history or tradition” (Comm’n Br.20, 31, 44; accord

Legion Br.18), is “interpretive jiggery-pokery,” King v.

Burwell, 135 S. Ct. 2480, 2500 (2015) (Scalia, J., dissenting). To be sure, Town of Greece did not apply

Lemon, but it also didn’t overrule it. Instead, it simply

applied and extended Marsh v. Chambers, 463 U.S. 783

(1983), to local legislative bodies. As Justice Alito summarized: “All that the Court does today is to allow a

town to follow a practice that we have previously held

is permissible for Congress and state legislatures.” 572

U.S. at 603 (concurring).

In Marsh, legislative prayer was upheld in a narrow opinion by Chief Justice Burger. The same term, in

another decision written by Justice Burger, the Court

applied Lemon to invalidate a “symbolic benefit” to religion. Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 123,

125-26 (1982). Thereafter, the Court explained that

Marsh is “not useful” outside the legislative-prayer

context. Edwards v. Aguillard, 482 U.S. 578, 583 n.4

(1987). Since then, the Court has consistently and repeatedly applied Lemon in religious-display cases. See,

e.g., McCreary, 545 U.S. at 860 n.10; Allegheny, 492 U.S.

at 604 n.53; Lynch, 465 U.S. at 683. See also Van Orden,

545 U.S. at 703-04 (Breyer, J., concurring) (ultimately

applying all three Lemon prongs).

Town of Greece, did not discuss Lemon, let alone

overrule it. But it did rely on Justice Kennedy’s concurrence in Allegheny, which both condemned a government-sponsored cross and expressed contentment to

“remain within the Lemon framework.” 492 U.S. at

661, 655 (concurring and dissenting). Justice Kennedy,

who authored Town of Greece, had also joined the majority in Santa Fe, 530 U.S. 290, which invalidated

prayer under Lemon’s purpose and effect prongs—a result that he noted in Town of Greece was not impacted

by the decision. 572 U.S. at 587.

2. This Court has never held—and indeed has disavowed—that a practice

is authorized under the Establishment Clause simply because it has a

strong historical pedigree.

This Court has consistently maintained that “no

one acquires a vested or protected right in violation of

the [Establishment Clause] by long use, even when that

span of time covers our entire national existence and

indeed predates it.” Walz v. Tax Commission, 397 U.S.

664, 678 (1970) (emphasis added). In Walz, although

the Court had looked to history, it also evaluated both

the purpose and effect of the statute (as in Lemon), reaffirming that “the basic purpose” of the Establishment Clause is “to insure that no religion be sponsored

or favored.” Id. at 669, 672-73, 678 (emphasis added).

In striking down the maintenance and repair provisions of a statutory scheme in Committee for Public

Education & Religious Liberty v. Nyquist, 413 U.S. 756,

792-93 (1973), the Court reiterated that historical acceptance, without more, could not legitimize the practice.

Indeed, the Court has repeatedly struck down

practices with strong historical pedigrees. The 6-1 Engel decision struck down nondenominational school

prayer, 370 U.S. at 425, notwithstanding the New York

Court of Appeals finding that “[a] few seconds of prayer

in the schools, acknowledging dependence on Almighty

God, is consistent with our heritage of ‘securing’ the

blessings of freedom which are recognized in both the

Federal and State Constitutions as having emanated

from Almighty God” and is “an integral part of our national heritage and tradition.” Engel v. Vitale, 10

N.Y.2d 174, 179 (1961). In this Court’s view, it was “an

unfortunate fact of history that when some of the very

groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this

country to write their own prayers into law, they

passed laws making their own religion the official religion of their respective colonies.” 370 U.S. at 427.

In Illinois ex rel. McCollum v. Board of Education,

333 U.S. 203 (1948), the Court struck down a releasetime program despite the practice’s long history. See id.

at 256 (Reed, J., dissenting) (discussing historical acceptance of practice). The Court invalidated the Maryland oath in Torcaso v. Watkins, 367 U.S. 488, 490

(1961), notwithstanding “much historical precedent for

such laws.” See also Texas Monthly, Inc. v. Bullock, 489

U.S. 1, 18 n.8 (1989) (“The fact that such exemptions

are of long standing cannot shield them from the strictures of the Establishment Clause.”) (citing Walz, 397

U.S. at 678).

Marsh reaffirmed the Walz passage quoted above,

but found that “far more [ ] than . . . historical patterns” authorized the practice. 463 U.S. at 790. It was

the reasons underlying that long history that proved

controlling. And those reasons were threefold: (1) The

practice was internal and intended to accommodate

the spiritual needs of lawmakers rather than to promote religion to the public (id. at 791-93, n.16); (2) The

practice was ecumenical and nondiscriminatory; it did

not “advance any one faith” in the prayers or the clergy

selection (id. at 792-95); and (3) The First Congress authorized legislative prayer at the same time that it produced the Bill of Rights. Id. at 790-91.

The Legion (at 18) rests its claim to a sea-change

on Justice Kennedy’s statement in Town of Greece that

“[a]ny test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.”

572 U.S. at 577. But that passage simply means “that

it is not necessary to define the precise boundary of the

Establishment Clause where history shows that the

specific practice” was “accepted by the Framers” and

has “withstood the critical scrutiny of time and political change.” Id. (emphasis added). The Court specifically cautioned that its opinion “must not be

understood as permitting a practice that would

amount to a constitutional violation if not for its historical foundation.” Id. at 576 (emphasis added). And

in upholding local legislative prayer, the Court relied

on the same underlying considerations as Marsh, none

of which justify sustaining this 40-foot Latin Cross, infra.

3. Even if Town of Greece were applicable here, it would not call for a reversal.

i. This imposing 40-foot Cross is not

an internal practice to accommodate the spiritual needs of lawmakers.

First, Bladensburg’s “monster calvary cross”

(J.A.431), unavoidable to thousands of motorists daily

(J.A.1013), is not an “internal act” to “accommodate the

spiritual needs of lawmakers.” Town of Greece, 572 U.S.

at 587-88. Marsh involved “ ‘government officials invok[ing] spiritual inspiration entirely for their own

benefit.’ ” Id. (citation omitted). Central to Town of

Greece’s holding was the fact that the audience “for

these invocations is not, indeed, the public but lawmakers themselves.” Id. And unlike prayers, “which by

their nature are fleeting,” Newdow, 603 F.3d at 1017

n.3 (Kavanaugh, J., concurring), this Christian monument is a permanent embodiment of the government’s

reverence for its Christian soldiers.

ii. The Bladensburg Cross is not ecumenical.

Second, the Cross “proselytize[s] on behalf of a

particular religion.” Allegheny, 492 U.S. at 661 (Kennedy, J., concurring and dissenting). “Historical practices” do not support government displays that align

the government with one particular religion. McCreary,

545 U.S. at 894, 897-98 (Scalia J., dissenting). Town of

Greece upheld legislative prayer based on the Court’s

understanding that “the Framers considered legislative prayer a benign acknowledgment” of religion because “no faith” was “excluded” or “favored.” 572 U.S.

at 571, 577. The Court stressed the importance of “nondiscrimination” and upheld Greece’s practice because

even an “atheist” could “give the invocation.” Id. at 571,

585.

iii. There is no long, unbroken, and

unambiguous history accepted

by our Framers of conspicuously

displaying massive solitary Latin

crosses or using the Latin cross

as a non-Christian military symbol.

Lastly, there “is a complete lack of evidence that

our founding fathers were aware of the practice of placing crosses” for prominent display on federal land. Eckels, 589 F. Supp. at 237. See Glassroth v. Moore, 335

F.3d 1282, 1298 (11th Cir. 2003) (“there is no evidence

of an ‘unambiguous and unbroken history’ of displaying religious symbols in judicial buildings”); Lynch, 465

U.S. at 719-21, 724-25 (Brennan, J., dissenting, joined

by Marshall, Blackmun, and Stevens, JJ.) (“there is no

evidence whatsoever that the Framers would have expressly approved . . . a nativity scene”).

Petitioners point to nothing to the contrary. Instead, they rely on the actions of “the Jamestown colonists” and other Christian “European settlers” long

before the Constitution was ratified and even longer

before the Establishment Clause was applied to the

states in 1947. Comm’n Br.45. But as Justice Kennedy

in Allegheny made clear:

[T]he relevant historical practices are those

conducted by governmental units which were

subject to the constraints of the Establishment

Clause. Acts of “official discrimination against

non-Christians” perpetrated in the 18th and

19th centuries by States and municipalities

are of course irrelevant to this inquiry, but the

practices of past Congresses and Presidents

are highly informative.

492 U.S. at 670 n.7 (concurring and dissenting; emphasis added). “It was precisely because Eighteenth Century Americans were a religious people divided into

many fighting sects that we were given the constitutional mandate to keep Church and State completely

separate.” Zorach, 343 U.S. at 318-19 (Black, J., dissenting). “With the power of government supporting

them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, . . . and all of these had from time to time

persecuted Jews.” Everson, 330 U.S. at 9.

The closest “Framers” evidence the Commission

finds is George Washington’s use of the “Grand Union

Flag.” Comm’n Br.46. But the “cross” in that flag was

not a Latin cross at all; it was the “British Union Jack”

replicating the Flag of Great Britain. Michael Corcoran, For Which It Stands, An Anecdotal Biography of

the American Flag 27-30 (2002). The “crosses” used by

the Union Army (Comm’n Br.46) were not Latin

crosses either. The Union Army used the cross pate (a

variant of the Maltese Cross or Iron Cross), which

would later morph into the “Distinguished Service

Cross, Navy Cross and Distinguished Flying Cross,”

none of which “replicate the Latin or Celtic Cross” and

each employs a “number of symbols” to make it “a distinctive symbol.” J.A.147-53. See St. Charles, 794 F.2d

at 271-72 (while the “Iron Cross” and the “Maltese—

eight-pointed—cross that is the principal German military decoration,” have lost their Christian association,

“the Latin cross has not”).

The Commission goes on to discuss early 20th century examples of crosses used “to honor the contributions of American servicemen and to memorialize the

dead.” Comm’n Br.47. But those crosses post-date the

Founding by more than one hundred years. And the

fact that the crosses were used does not make them

secular, let alone render them akin to “In God We

Trust” and other “benign invocations of religion.” Cf.

Comm’n Br.16, 19, 24, 49. Again, Jewish groups have

been saying loudly and clearly, as they did in the 1920s,

that the Latin cross was (and is) not a “symbol of sacrifice” for their servicemembers. J.A.1199-1200. The

two Catholic groups made equally clear to Congress

that the cross was not a “benign” symbol for non-Christians, but rather, a sacred symbol for “Catholic men”

and “Christian soldiers” so their graves “could be

blessed.” J.A.1189-99, 1212-13.

The “hundreds” of “Crosses of Sacrifice in Commonwealth countries’ World War I cemeteries”

(Comm’n Br.9) assuredly do not reflect the cross’s

“secular” non-Christian meaning (Comm’n Br.34-35)

either. The Commonwealth War Graves Commission

chose the cross in “recognition of the fact that we are a

Christian Empire.” Sir Frederick Kenyon, War Graves:

How the Cemeteries Abroad Will Be Designed (1918),

http://handle.slv.vic.gov.au/10381/90357. This, of course,

“is entirely consistent with a country that unites

Church and State.” J.A.163-64.

Moreover, the British government did not “impose

a sectarian Cross over the graves of Hindus, Muslims,

Sikhs, Buddhists, Jews, and other soldiers.” J.A.157.

See J.A.154-55. In fact, the Commonwealth War

Graves Commission erected sectarian monuments for

religions other than Christianity. J.A.157-60. For instance, the Indian Memorial at Neuve Chapelle commemorates over 4,700 Indian soldiers and features no

cross. J.A.157-58.

Petitioners also cite the history discussed in Lynch

and Van Orden. Legion Br.35-40; Comm’n Br.19, 24, 32,

50. Lynch described “official references to the value

and invocation of Divine guidance,” “God” in the national motto and pledge, the display of religious paintings in museums, and the depiction of Moses with the

Ten Commandments that graces this Court’s oral-argument chamber. 465 U.S. at 675-78. Nowhere in that

opinion can one find historical support for displaying

crosses.

The Van Orden plurality canvassed governmental buildings, presidential papers, and legislative

enactments for display and mention of the Ten

Commandments. 545 U.S. at 688-90. But the Commandments “are not so closely associated with a single

religious belief.” McCreary, 545 U.S. at 909 (Scalia, J.,

dissenting).16 In contrast, as Justice Scalia concluded,

the Framers would have condemned a display that

aligned the government with a sectarian symbol, such

as a “particular version of the decalogue.” Id. at 894 n.4

(Scalia, J., dissenting).

Indeed, Justice Scalia canvassed founding-era history to conclude: “All of the actions of Washington and

the First Congress,” and “all the other examples of our

Government’s favoring religion that I have cited, have

invoked God, but not Jesus Christ.” Id. at 897. Justice

Scalia noted, for example, that Washington’s Proclamation “was scrupulously nondenominational.” Id. at

893.

Jefferson demanded equal treatment of “the Jew

and the Gentile, the Christian and Mahometan, the

Hindoo, and infidel of every denomination,” 1 Writings

of Thomas Jefferson 62 (P. Ford ed. 1892). Madison, in

turn, was contemptuous of prejudice over “Jews, Turks

& infidels” being elected to office. Robert S. Alley,

James Madison on religious liberty 72 (Prometheus

Books 1985). It thus defies common sense to think that

they would have sanctioned a 40-foot-tall government

war memorial that discriminates against thousands of

The plurality also referenced stones inside the Washington

Monument that contain Biblical citations. 545 U.S. at 689 n.9. The

stones’ size and their placement inside the monument make them

a conceptual world apart from this 40-foot-tall Latin cross. Compare J.A.1570, with J.A.765, 931.

“Jewish soldiers,” Buono, 559 U.S. at 725-26 (Alito, J.,

concurring), and all other patriotic non-Christian soldiers, Allegheny, 492 U.S. at 615 n.61.

The Legion contends (at 19) that the “inquiry is

broader than merely asking whether the specific practice” was “accepted by the Framers,” because in Allegheny, 492 U.S. at 670, Justice Kennedy was concerned

with invalidating “ ‘practices with no greater potential

for an establishment of religion’ ” than those accepted

traditions of our Founding. But by “practices with no

greater potential,” Justice Kennedy meant those that

have become part of “our expressive idiom, similar to

the Pledge of Allegiance.” Town of Greece, 572 U.S. at

587. Even the Commission (at 33) concedes that Town

of Greece does not uphold “intrusive sectarian content.”

Furthermore, Justice Kennedy also asked whether

the historical practice has “withstood the critical scrutiny of time and political change.” Id. at 566. Cross displays have been challenged many times and in 30 out

of 33 cases, the displays have been struck down. Br. in

Opp.15-18 (17-1717). War memorial crosses, in particular, have uniformly been struck down. Id. at 15-20.

4. The “history” test is neither a workable nor principled approach to religious-display cases.

The foregoing highlights the senselessness in applying Marsh and Town of Greece to religious displays

specifically, and outside of the legislative prayer context generally. One “cannot seriously believe that the

history of the First Amendment furnishes unequivocal

answers to many of the fundamental issues of churchstate relations.” Nyquist, 413 U.S. at 820 (White, J., dissenting, joined by Rehnquist, J.). Just as it is “virtually

impossible to determine the singular ‘motive’ of a collective legislative body,” Church of the Lukumi Babalu

Aye Inc. v. City of Hialeah, 508 U.S. 520, 558-59 (1993)

(Scalia, J., concurring), the “Framers simply did not

share a common understanding of the Establishment

Clause.” Lee, 505 U.S. at 626 (Souter, J., concurring).

Thomas Jefferson and Andrew Jackson both refused on Establishment Clause grounds to declare national days of Thanksgiving or fasting. Marsh, 463 U.S.

at 807 (Brennan, J., dissenting). John Jay and John

Rutledge “opposed the motion to begin the first session

of the Continental Congress with prayer.” Id. at 791.

Madison refused to issue Thanksgiving proclamations

and prayer, but later, amid the political turmoil of the

War of 1812, did so on four separate occasions. Elizabeth Fleet, Madison’s “Detached Memoranda,” 3 Wm.

& Mary Quarterly 562, and n.54 (1946). Although this

Court concluded in Marsh that the Founders approved

paid chaplains, based largely on Madison’s approval,

Madison later and unambiguously expressed the view

that the practice was unconstitutional. Id. at 534, 558.

So what kind of unanimity would be required to

render a practice sufficiently historically supported?

What if a practice doesn’t date back to the Founding?

What is “without meaningful controversy?” Comm’n

Br.33. Is one or two lawsuits enough? A test with that

kind of unbounded line-drawing is nothing more than

an invitation to judges to introduce their biases into

their judging.

The “history” test also fails to account for the fact

that “[t]he first Congress was—just as the present

Congress is—capable of passing unconstitutional legislation.” Van Orden, 545 U.S. at 726 n.27 (Stevens, J.,

dissenting). The First Congress “could raise constitutional ideals one day and turn their backs on them the

next.” Lee, 505 U.S. at 626 (Souter, J., concurring). And

“we must never forget that not only slavery but also

the subjugation of women and other rank forms of discrimination are part of our history.” McDonald v. City

of Chi., 561 U.S. 742, 875-76 (2010) (Stevens, J., dissenting). That history is also replete with “rank forms

of discrimination” against religious minorities—a history that we would hardly want to see enshrined today.

This record alone captures the country’s changing

morays. The Legion held the “greatest ministrel [sic]

show” (produced by John B. Rogers) to benefit the “Memorial Cross,” raising $250. C.A.App.2088; J.A.210.

“[M]any pretty females” were “donated” for this event

too. Id. The Legion also fundraised through fun carnival games like “Coon in Barrel” and “Japanese Board.”

C.A.App.2075. Indeed, a “number of Klansmen were

members of the American Legion during this era.”

J.A.120. Do we really want to settle on a test that fails

to consider the values that our nation has developed

since that era?

B. Holding that the Establishment Clause

does nothing more than preclude religious coercion would write the Establishment Clause out of the Constitution

and overturn seventy years of precedent.

1. This Court has consistently rejected

the argument that coercion is a necessary requirement for an Establishment Clause violation.

This Court has repeatedly held that the Establishment Clause “ ‘does not depend upon any showing of

direct governmental compulsion and is violated by the

enactment of laws which establish an official religion

whether those laws operate directly to coerce nonobserving individuals or not.’ ” Wallace, 472 U.S. at 60

n.51 (quoting Engel, 370 U.S. at 430); accord Nyquist,

413 U.S. at 786-87 (“The absence of any element of coercion, however, is irrelevant to questions arising under the Establishment Clause.”); Schempp, 374 U.S. at

223 (“[A] violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.”).

Rather, the Establishment Clause proscribes the

government from “conveying or attempting to convey a

message that religion or a particular religious belief is

favored or preferred,” Allegheny, 492 U.S. at 593 (internal quotation marks omitted), even if the government

does not “impose pressure” on individuals to participate. Board of Education v. Mergens, 496 U.S. 226, 261

(1990) (Kennedy, J., concurring). See, e.g., Edwards,

482 U.S. at 593 (invalidating statute requiring instruction in “creation science” because it “endorses religion”); Texas Monthly, 489 U.S. at 17 (tax exemption

benefiting only religious publications “effectively endorses religious belief ” independent of coercion); Epperson, 393 U.S. 97 (invalidating non-coercive law that

barred teaching of evolution).

2. The coercion-only standard is unworkable, unprincipled, and akin to

no test at all in the context of religious displays.

The Court has avoided making coercion the sine

qua non of the Establishment Clause for good reason:

Neither the text, history, nor purpose of the Establishment Clause supports it; the standard cannot be reconciled with its precedents; and it would yield

harrowing, unprincipled, and inconsistent results.

Textually, if coercion were a necessary element,

then the Establishment Clause would be redundant of

the Free Exercise. For laws that coerce nonadherents

to “participate in any religion or its exercise,” Allegheny, 492 U.S. at 659-60 (Kennedy, J., concurring and

dissenting), would also violate their right to religious

free exercise. See Schempp, 374 U.S. at 223. But the

Establishment Clause “unquestionably has independent significance.” Welsh v. United States, 398 U.S. 333,

373-74 (1970) (White, J., dissenting).

As a historical matter, although coercion is clearly

forbidden, it cannot be the only thing the Framers had

in mind. Otherwise, Jefferson’s “wall” metaphor and

his view that Thanksgiving proclamations ran afoul of

the Clause, supra, would make little sense. Lee, 505

U.S. at 622 (Souter, J., concurring). That Madison also

“expressed so much doubt about the constitutionality

of religious proclamations” suggests “a brand of separationism stronger even than that embodied in our traditional jurisprudence.” Id. at 625-26.

The coercion-only standard would also fail to

guard against the three primary evils against which

the Establishment Clause was intended to forestall:

“sponsorship, financial support, and active involvement of the sovereign in religious activity.” Walz, 397

U.S. at 668. It would allow the government to opine on

Catholic dogma, for example, and to enter into any

other oppressive, but non-coercive, “union of civil and

ecclesiastical control.” Larkin, 459 U.S. at 127 n.10 (“At

the time of the Revolution, Americans feared not only

a denial of religious freedom, but also the danger of political oppression through a union of civil and ecclesiastical control.”) (citation omitted). See also Grumet,

512 U.S. at 696, 704 (“legislative favoritism along religious lines” is unconstitutional even if no one is coerced

by it); accord id. at 729 (Kennedy J., concurring).

Indeed, a coercion-only standard would do violence to what this Court has deemed the touchstone for

this Court’s Establishment Clause jurisprudence; that

is, that the “First Amendment mandates government

neutrality between religion and religion, and between

religion and non-religion.” Epperson, 393 U.S. at 104.

Relying on the history of the Clause, Justice Black in

Everson outlined the considerations that have become

the bedrock of Establishment Clause jurisprudence:

Neither a state nor the Federal Government

can . . . pass laws which aid one religion, aid

all religions, or prefer one religion over another. Neither can force nor influence a person

to go to or to remain away from church against

his will or force him to profess a belief or disbelief in religion . . . . Neither a state nor the

Federal Government can, openly or secretly,

participate in the affairs of any religious organizations or groups and vice versa.

330 U.S. at 15-16 (emphasis added). The “principle of

neutrality has provided a good sense of direction” to

courts, and a necessary one, because it responds to “the

major concerns that prompted adoption of the Religion

Clauses.” McCreary, 545 U.S. at 860, 875-76. The Framers understood that “nothing does a better job of roiling

society” than when “the government weighs in on one

side of religious debate.” Id.

Even Justices who have narrowly interpreted the

Establishment Clause have conceded that it mandates

religious neutrality above and beyond non-coercion.

See Rosenberger, 515 U.S. at 862 (Thomas, J., concurring) (“The constitutional demands of the Establishment Clause may be judged against either a baseline

of ‘neutrality’ or a baseline of ‘no aid to religion.’ ”);

Bowen v. Kendrick, 487 U.S. 589, 609-10 (1988) (opinion

by Rehnquist) (reaffirming the requirement of “ ‘neutrality among religions, and between religion and

nonreligion’ ”) (citation omitted); Edwards, 482 U.S. at

616-17 (Scalia, J., dissenting) (“governmental ‘neutrality’ toward religion is the preeminent goal”); Walz, 397

U.S. at 694-95 (Harlan, J., concurring) (the Clause requires both “neutrality” and “voluntarism”).

Yet, under the radical standard the Legion proposes, nothing would prevent the government from

“approv[ing] the core beliefs of a favored religion over

the tenets of others, a view that should trouble anyone

who prizes religious liberty.” McCreary, 545 U.S. at

880. As Justice Scalia made clear: “our constitutional

tradition . . . rule[s] out of order government-sponsored

endorsement of [sectarian] religion—even when no legal coercion is present.” Lee, 505 U.S. at 641 (dissenting).

Given its shortcomings, it’s not surprising that the

coercion test has been roundly criticized by Justices of

this Court. In Allegheny, the majority refused to adopt

the rule that “religious symbols do[ ] not violate the Establishment Clause unless they are shown to be ‘coercive.’ ” 492 U.S. at 597 n.47 (Blackmun, J.). Justices

O’Connor, Stevens, Brennan, and Marshall all criticized a coercion standard as unworkable in religious

display cases. Id. at 627-28 (O’Connor, J., concurring);

id. at 649-50, & n.6 (Stevens, J., concurring and dissenting, joined by Brennan and Marshall, JJ.) (finding

it “unlikely that ‘coercion’ identifies the line between

permissible and impermissible religious displays any

more brightly than does ‘endorsement’ ”). Neither the

plurality nor Justice Breyer deemed the coercion test

“useful” in Van Orden, 545 U.S. at 686 (plurality

opinion); cf. id. at 693-94 (Thomas, J., concurring) (suggesting the Court should apply the direct coercion

test).

Even in the legislative-prayer context, Justice

Kennedy’s opinion in Town of Greece was concerned

not only with coercion, but also with the discrimination

and exclusion of religious minorities. 572 U.S. at 583,

586, 589. He crystalized this point in concluding that

the government cannot “exclude or coerce nonbelievers.” Id. at 591 (emphasis added). Justice Alito agreed

that he would view the case “very differently” if the

town had excluded Jews or other non-Christians from

the invocation opportunity. Id. at 597 (concurring).

Nor would the coercion test eliminate the “delicate

and fact-sensitive” review inherent in Establishment

Clause jurisprudence. Lee, 505 U.S. at 597. As Justice

Scalia put it in Lee, the test is “boundlessly manipulable.” Id. at 631-32 (Scalia, J., dissenting). The Legion

states that under its test, a plaintiff must “demonstrate some form of coercion.” Legion Br.22. It uses

terms like “compels,” “exploited to excessively proselytize,” and “historically grounded form of coercion” to define its test. Legion Br.47, 53. At the same time, it

concedes that “direct” coercion is not required. Br.22.

See Santa Fe, 530 U.S. at 312. So what do “compel,” “exploit,” “proselytize,” and “excessive” mean? Adopting a

coercion-only test would not allow courts to avoid these

questions, and “[d]ifferences of opinion are undoubtedly to be expected.” Nyquist, 413 U.S. at 805-06

(Rehnquist, J., concurring and dissenting).

The Legion offers but one example, in a footnote at

that, as to what would be prohibited as coercive: the

“preferential funding of religious organizations.” Legion Br.23-24 (citing Corp. of Presiding Bishop of the

Church of Jesus Christ of Latter-Day Saints v. Amos,

483 U.S. 327, 335 (1987)). Not only did Amos embrace

and apply Lemon, but Amos did not even involve a religious display—making it clear that, under the Legion’s interpretation of the “coercion” test, no display

would be out of bounds.

3. The Cross fails the coercion test.

Even if the Court evaluates the Bladensburg

Cross under the coercion test, the Cross remains unconstitutional. While the Legion (at 55) contends that

“passive displays with religious imagery” “cannot constitute an establishment of religion except in extraordinary cases,” the Bladensburg Cross is indeed

extraordinary. Justice Kennedy’s concurrence in Allegheny deemed a “large Latin cross” conspicuously displayed “year-round” atop city hall an “extreme” case

and an “obvious” violation. 492 U.S. at 661 (concurring

and dissenting).

The Bladensburg Cross is, if anything, even more

“extreme” than Justice Kennedy’s exemplar: at 40-feet,

it is huge; it is displayed year-round; and it is nothing

but conspicuous and prominent. In addition, unlike the

display in Van Orden, which was “passive” because it

was not used for “meditation” or “religious activity,”

545 U.S. at 701-02 (Breyer, J., concurring), and presumably even unlike Justice Kennedy’s cross atop city hall,

the Bladensburg Cross has been used as the centerpiece for annual Town-sponsored events that include

Christian prayer. Pet.App.8a.

Furthermore, even the Legion agrees that a practice violates the coercion test if it coerces “financial

support for religion.” Legion Br.53. Here, the Commission has poured $117,000 of taxpayer money into the

Cross’s renovation and upkeep and has earmarked

$100,000 for another substantial renovation project.

“When the power, prestige and financial support of

government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved

religion is plain.” Engel, 370 U.S. at 431 (emphasis

added).

In sum, adopting a single “coercion” or “history”

test to govern every Establishment Clause case flouts

this Court’s “unwillingness to be confined to any single

test or criterion in this sensitive area.” Lynch, 465 U.S.

at 679. “It is always appealing to look for a single test,

a Grand Unified Theory.” Grumet, 512 U.S. at 718-19

(O’Connor, J., concurring). But “[e]xperience proves

that the Establishment Clause, like the Free Speech

Clause, cannot easily be reduced to a single test.” Id. at

720. Only the Lemon test, which, as discussed below,

has withstood the test of time, fully accounts for all the

relevant variables.

III. If the Court reaches the question, it should

reaffirm the Lemon test and hold that the

Bladensburg Cross runs afoul of the test.

A. The Lemon test derived from decades of

precedent, effectuates the principles of

the Establishment Clause, and has

brought clarity and consistency to religious-display cases.

The Legion and its amici’s attack on Lemon is an

attack on the entire history of Establishment Clause

jurisprudence. Lemon was a carefully considered 8-1

opinion of then-Chief Justice Burger that distilled the

entirety of the Court’s Establishment Clause jurisprudence into a sensible framework. 403 U.S. at 612.

That distillation broke no new ground; rather, it

was “a convenient, accurate distillation of this Court’s

efforts over the past [five] decades to evaluate a wide

range of governmental action.” Meek v. Pittenger, 421

U.S. 349, 359 (1975). “[T]he now well-defined threepart test that has emerged from [this Court’s] decisions is a product of considerations derived from the

full sweep of the Establishment Clause cases.” Nyquist,

413 U.S. at 772-73 (emphasis added).

The test echoed what had been subscribed to by

eight Justices eight years earlier in Schempp: “[W]hat

are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of

legislative power as circumscribed by the Constitution.” 374 U.S. at 222. These considerations had earlier

been recognized in Torcaso, 367 U.S. 488, in Braunfeld

v. Brown, 366 U.S. 599, 607 (1961), and in McGowan v.

Maryland, 366 U.S. 420, 445 (1961); id. at 466 (Harlan,

J., concurring) (“If the primary end achieved by a form

of regulation is the affirmation or promotion of religious doctrine—primary, in the sense that all secular

ends which it purportedly serves are derivative from,

not wholly independent of, the advancement of religion—the regulation is beyond the power of the

state.”). And they were reaffirmed in Gillette v. United

States, 401 U.S. 437, 450 (1971).

Indeed, since its adoption in 1971, the Court has

adhered to the Lemon test in nearly every case, eschewing it only in cases that could be decided upon uncontested Establishment Clause precepts (as in Lee,

Larson, and Grumet), the sui generis legislative prayer

context (Marsh and Town of Greece), and where the Establishment Clause was raised as a defense (as in Rosenberger and Pinette).

More importantly, despite eschewing Lemon in

rare instances, this Court has consistently applied

Lemon in religious-display cases. See, e.g., McCreary,

545 U.S. at 860 n.10; Allegheny, 492 U.S. at 604 n.53;

Lynch, 465 U.S. at 683. Even in Van Orden, Justice

Breyer stated that Lemon remained “useful” even in

dual-significance cases and eventually applied all

three of Lemon’s prongs. 545 U.S. at 700, 703-04

(Breyer, J., concurring).

And Lemon has yielded consistent results in such

cases. Prominent religious displays that consisted of

solitary religious items, dominated their surroundings,

or were motivated by religious purposes, have been

deemed impermissible. McCreary, 545 U.S. at 881; Allegheny, 492 U.S. at 598-99 (crèche); Stone, 449 U.S. at

41-43. In contrast, dual-meaning items that were integrated into a larger display with a primarily secular

purpose have withstood scrutiny. Van Orden, 545 U.S.

at 691 n.11 (plurality); id. at 703-04 (Breyer, J., concurring); Allegheny, 492 U.S. at 616-17 (menorah); Lynch,

465 U.S. at 671, 681. The Circuits have had little trouble applying these rules, especially in sectarian display

cases. Br. in Opp.15-18 (17-1717).17

Lemon’s prongs are also “ ‘precisely tailored to the

Establishment Clause’s purpose.’ ” Edwards, 482 U.S.

at 587 (citation omitted). “When the government acts

with the ostensible and predominant purpose of advancing religion, it violates that central Establishment

Clause value of official religious neutrality, there being

no neutrality when the government’s ostensible object

is to take sides.” McCreary, 545 U.S. at 860. The effect

prong captures the essential command of the Establishment Clause that the government cannot “aid one

religion, aid all religions, or prefer one religion over another.” Everson, 330 U.S. at 15-16 (emphasis added).

The final Lemon prong harkens back to the final example in Everson (id. at 16), which captures the Madisonian concern that secular and religious authorities

Rather than abandon Lemon wholesale, the effect-prong

reasonable observer could readily be replaced with principled factors such as those set forth in I.C.

must not interfere with each other’s respective spheres

of choice and influence, supra.

“At a time when we see around the world the violent consequences of the assumption of religious authority by government,” the Court must ask, “[w]hy

would we trade a system that has served us so well for

one that has served others so poorly?” McCreary, 545

U.S. at 882 (O’Connor, J., concurring).

B. The Cross is unconstitutional under

Lemon.

The Bladensburg Cross fails the effect prong of

Lemon for the reasons set forth in Section I.C. and in

the Fourth Circuit’s decision. Pet.App.19a-31a. The

Cross aggrandizes the hallmark symbol of Christianity; the symbol is not embraced by non-Christians as

their symbol of sacrifice and is, indeed, offensive to

some of them; the fact that the Cross is a war memorial

exacerbates the Cross’s unconstitutional effect because it discriminates against patriotic soldiers who

are not Christian; the Cross is both permanently and

prominently displayed; and the government has

poured $117,000 into its restoration and maintenance,

and is promising to spend at least $100,000 more on it.

Id.

The magnitude of the government’s funding also

gives rise to entanglement problems, which are exacerbated by the Town and Commission’s joining in religious activities held with the Cross as the backdrop.

In Lynch, this Court indicated that government

involvement with a religious display amounts to excessive entanglement where there is “evidence of contact

with church authorities,” or where “expenditures for

maintenance of the [display]” are more than de minimis. 465 U.S. at 684. The government’s expenditures

and involvement with this Cross—including frequent

contact with Christian church authorities (and only

Christian authorities) to deliver prayers at its events

held at its Cross—dwarf the government involvement

presented in Lynch.

IV. Upholding the Fourth Circuit’s decision

will not have the calamitous consequences

Petitioners and their amici forecast.

A. Declaring the Bladensburg Cross unconstitutional would not doom other

war memorials.

1. Petitioners overexaggerate the ubiquity of freestanding Latin cross memorials.

Petitioners and their amici claim that affirming

the decision below will doom “countless” and at least

“hundreds” of similar war memorials around the country. Comm’n Br.2, 22; Legion Br.11-12; West Virginia

Amicus Br.6. In fact, “this war memorial—with its imposing Cross—stands as an outlier.” Trunk, 629 F.3d at

1101. See J.A.84, 98, 165.18

Indeed, the smaller cross in Towson (Legion Br.5) is noted

as a “rare example.” C.A.App.2660.

“Thousands of war memorials have been dedicated

since the end of the American Revolution, but most do

not use any religious iconography,” J.A.84, and “[e]ven

fewer memorials are free standing sculptural renderings of the Latin Cross.” J.A.79. “When the Cross has

been used, it is seldom a dominant feature of the memorial.” J.A.84. And when “free standing Latin Crosses

have been built as war memorials they have generally

been located in cemeteries.” J.A.86. In the few examples where standalone crosses are built outside of national cemeteries, they usually serve as a “distinctive

ethnic” marker. J.A.88. The Irish Brigade Monument (a

Celtic cross), for instance, is but one of hundreds of

monuments in Gettysburg and represents a brigade of

Irish immigrants, bearing both the seal of Ireland and

an Irish bloodhound. J.A.88, 98, 1122.

The “hundreds of other monuments built in the aftermath of World War I” that the Commission mentions on page 2, refers to its later statement on page 9

that the “United Kingdom, Canada, and Australia collectively built hundreds of ‘Crosses of Sacrifice.’ ” (emphasis added).

The Commission later states that “by one estimate” there are “at least 40 World War I monuments

. . . in the United States that bear the shape of a cross.”

Comm’n Br.8 (citing J.A.1130). As the source indicates,

however, that number was taken from a search on the

Smithsonian database for outdoor World War I sculptures that mentioned “cross.” J.A.1130. A recent search

shows that of the approximately 1,000 outdoor World

War I sculptures tracked by the Smithsonian, only 19

incorporate some form of a cross.19 And only a few incorporate the Latin cross, as opposed to the Red Cross,

Celtic Cross, or Distinguished Flying Cross (i.e., the

World War Cenotaph in Connecticut). And even

fewer—three—consist of a standalone Christian cross:

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