# Respondents Brief — Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 451 (2018) (No. 17-1717) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0835%3A26 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 2018 ## Text Nos. 17-1717, 18-18 Iu The Supreme Court of the United States -— THE AMERICAN LEGION, et ai., Petitioners, — AMERICAN HUMANIST ASSOCIATION, et ai., Respondents, MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, Petitioner, Vv. AMERICAN HUMANIST ASSOCIATION, et ai., Respondents. On Writ Of Certiorari Tc The United States Court Of For The Fourth Circuit @ aA 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 BRIKFS (800) 225-6964 WWW COCKLELEGALBRIEFS COM i 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 pre- sented is this: Does the Establishment Clause allow the govern- ment 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-traf- ficked intersection at the entrance of town? ‘3 TABLE OF CONTENTS Page QUESTION PRESENTED.........................ccc00eee00+ i eC ritittciininininnninininintiiiinniaiane ii TABLE OF AUTHORITIES .............................00+- ix STATEMENT OF THE CASE..............................- 1 Rf 1 1. The origins of Bladensburg’s Latin SD ccnintctarnintnnenaptiinttinapettininines 1 2. The historical context in which the Bladensburg Cross was erected .......... 5 3. The Cross’s physical features and set- ei cnccnnrisitcinsertviinidvenninmniiascinneticne 8 4. The Commission’s ownership of the NE cccctnvennictnistenennesdentaienentneviniaenns 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” I ee i cccnseventescisterssacenne 14 7. The Latin cross and its exclusively I oc cincniccenciimmninrenncs 16 i — "aigiacrecntameatnctditesttiess connie Dean M. Kelley, Beyond Separation of Church and State, 5 J. Church & State 181 (1963), https://www.jstor.org/stable/23913258............... Douglas Keister, Stories in Stone: A Field Guide to Cemetery Symbolism and Iconagraphy (2004).. Elizabeth Fleet, Madison’s “Detached Memo- randa,” 3 Wm. & Mary Quarterly 562 (1946) ... Emanuel Milton Altfeld, The Jewish Struggle for Religious and Civil Liberty in Maryland (1924), https-//bit.ly/2Dn1Qs8 «0... eoos----- Giles Fraser, Christians must understand that for Jews the cross is a symbol of } oppression, The Guardian (2014), https://bit.ly/2LP63DN .. —_ Maps, ae ay cated (https//bi ly/2RAh3zm] (accessed Jan. 14, 2019) ............... Jewish Washington, Restrictions, Scrapbook Of An American Community, https://bit.ly/2SVkN85 (accessed Jam. 14, 2019) .............cccccccccecceeccceeceecceeee Laurel Wamsley, Satanic Sculpture Installed At Illinois Statehouse, Just In Time For The Holi- days, NPR (Dec. 4, 2018), https://n.pr/2Rz1ukj .. M. Newton & J. Newton, The Ku Klux Klan: An Encyclopedia (1991) .........0c0-c0-ececeeeseeseess0-e stn xvi TABLE OF AUTHORITIES — Continued Meagan Flynn, To Catholics, Junipero Serra is a saint. To Stanford University, he’s a mailing address worth eliminating, The Washington Post (Sept. 18, 2018), https://wapo.st/2AHvwik... Michael Corcoran, For Which It Stands, An Anecdotal Biography of the American Flag Michael Sledge, Soldier Dead: How We Recover, Identify, Bury, & Honor Our Military Fallen GD ce cececectensnessiencersenaninmanmmnsnianniiimnnmenssenes National Park Service, LATIN CROSS—Chris- tian Faith, https://bit.ly/2Hnyxre (accessed ey ED thetnitirencecinimmnammmemneens Nikki Wentling, ‘/t’s a brotherhood’: Veterans who fought for Vietnam helicopter monument at Arlington see it unveiled, Stars and Stripes, https://perma.cce/FG9Y-83MZ ...............cccccceeeenees 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-//tume.com/}459439/ american- I i ae Robert S. Alley, James Madison on religious lib- erty (Prometheus Books 1985)........................... Robin Wright, Humayun Khan Isn't the Only Muslim American Hero, The New Yorker (Aug. 15, 2016), https//bit.ly/2D90PV3 ............. xvii TABLE OF AUTHORITIES ~— Continued Sir Frederick Kenyon, War Graves: How the Cemeteries Abroad Will Be Designed (1918), http://handle.slv.vic.gov.au/10381/90357 ........... Smithsonian Institute, Polar Bear Memorial (sculpture), https://s.si.edu/2UJY7Js (accessed GU, Ti ED stectenmnitnensemnniigereriiieneminisasenes Smithsonian Institute, Volusia County Memo- rial To World War Heroes, (sculpture), https:// s.si.edu/2SMoEEz (accessed Jan. 15, 2019) ...... Smithsonian Institute, World War I, (sculpture) (outdoor sculpture), https-//s.si.edu/2Fq7jNW, {https://perma.cc/8CYT-7TWW VU] .........-..-.-..----- Smithsonian Institute, World War I, (sculpture) (outdoor sculpture) (cross), https://s.si.edu/ EE siiencsinnicnnsiientinnnistaiieinnaiiabiaabidiiaibidiiengntntins Smithsonian Institution Research Information System, World War I Monument (sculpture) https://s.si.edu/2M4jjG7 (accessed Jan. 16, SPEED cccnncssecnssyeseannnetennnanenemminmmisamareteememeeneesnes Steve Newton, Nativity removed; governor says it ‘mocks Christians’, USA Today (Dec. 23, 2015), https://bit.ly/2CHfmEp................-.0......-- Thomas Jefferson, The Virginia Statute for Reli- gious Freedom (Jan. 16, 1786), reprinted in FOUNDING THE REPUBLIC: A DOCUMENTARY His. TorY (John J. Patrick ed., 1995)......................... xviii TABLE OF AUTHORITIES ~— Continued U.S. Dept. of Veterans Affairs, Available Em- blems of Belief for Placement on Government Headstones and Markers, National Cemetery Administration, http//www.cem.va.gov/hmm/ emblems.asp (accessed Jan. 12, 2019)............... Vatican Radio, Pope says the Cross is the gate of salvation, prays for youths after Guatemala blaze, Abouna.org (Mar. 12, 2017), https://bit. LETS RIE AES Vivek Chaudhary, The forgotten Muslim heroes who fought for Britain in the trenches, The Guardian (Nov. 11, 2017), https//bit.ly/2IGUQyN ... 1 Writings of Thomas Jefferson 62 (P. Ford ed. BEND scctecencsinsscncnstenmniennntiatihiinhintiniaiinniianiamintidessiabeeiees +45 l STATEMENT OF THE CASE A. Factual Background The government is prominently displaying a 40- foot-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 inter- sections in Prince George’s County, Maryland (the “Bladensburg Cross” or the “Cross.”) Pet.App.6a-7a, 54a, 59a'; J.A.279, 984, 1410. The Cross and the me- dian are owned and maintained exclusively by the Maryland National Capital Park and Planning Com- mission (“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 com- memorate those who perished in World War I. J.A.60- 61, 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 ob- tained the consent of the Commissioners of the Town ' “Pet.App.” refers to the Commission’s Petition Appendix 2 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 like- ness 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 ef- fort 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 lead- ers 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 Septem- ber 28, 1919, the Secretary of the Navy “was the pri- mary speaker” and other “‘speeches were given by 3 local officials.’” Pet App.56a-57a; J.A.1260, 910, 1024- 26. By 1922, the Calvary Cross was erected in its cru- ciform 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. “|Mlany citizens, aware the county already had a war memorial, deemed unnecessary to support further at- tempts 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 every- day.” J.A.462. So on February 25, 1922, the Town “re- solved” 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.57a- 58a; 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.1061- 62. 4 The Cross was dedicated on July 12, 1925, at a public ceremony led by government officials and Chris- tian 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 Cal- vary, let us keep fresh the memory of our boys who died for a righteous cause.” Pet.App.59a; J.A.216-18 (em- phasis 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 be- came 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 Bap- tist Church. J.A.471. In May 1929, memorial “exer- cises” 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. 5 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 sur- prising 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 “|clitizens unwilling to avow a belief in Christianity, or being Jews, were unwilling to subscribe to a belief in a here- after.” 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, Pan- theists, Moslems, Buddhists, and Brahmins” were ex- cluded from office. Jd. 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 6 J.A.1329-33. As a former commander wrote, Jewish war veterans united to fight a “tidal-wave” of “poison- ous 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/2Dn!Qs8. In Prince George’s County in the 1920s, the Latin cross was “appropriated by the Ku Klux Klan as a sec- tarian symbol designed to intimidate Jews, Roman Catholics, and African Americans.” J.A.80. See J.A.117- 22, 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. Jd. See 7 also Virginia v. Black, 538 U.S. 343, 393 (2003) (Thomas, J., dissenting) (discussing rise in cross burn- ings 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 vio- lence.”). “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 Un- known Soldier, as the symbol on chaplain uniforms (in- cluding 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 non- Christian 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) 8 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 grave- stone used for Jewish soldiers.” J.A.1094 (emphasis added). Accord Comm'n Br.4 (quoting J.A.1143). Cem- eteries in the United States adopted the uniform slab marker. Pet.App.35a; J.A.80, 160. And the “vast major- ity of World War I memorials do not make use of reli- gious 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 set- ting 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.44- 47. 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 Annap- olis.” Pet App.56a; see J.A.33-34, 44, 306; C.A_-App.686. It is “one of the county’s busiest intersections” 9 (Pet.App.6a; J.A.279), traversed by “thousands” of mo- torists 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 Le- gion” 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.62- 63, 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-foot- tall plaque listing men who died in World War I. Pet.App.8a-9a, 55a.* The plaque is usually obscured by bushes. Pet.App.9a, 26a; J.A.41, 236, 423-24, 701, 929- 31, 984; C.A.App.861; 1102, 1107, 1112. Even when cleared, the plaque cannot be read by passing motor- ists. 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. 10 J.A.426, 887-90. One local didn’t even know her uncle's name was on the plaque until this litigation.’ 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 I! 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-Vi- etnam 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 in- stalled 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 re- cently, 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 sep- arate parcel with the scroll. Pet. App.61a; J.A.856-57.* 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 FE. Ruane, A World War / cross under siege, Washington Post (Sept. 21, 2018), https://wapo.st/ 2U2UvRo. * Google Maps, https://goo.g/mape/QXupgkdCY Gy, https//goo.gi/ mape/cRroAB86QW72 (https//bit.ly/2RAh3zm| (accessed Jan. 14, 2019). 11 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 de- liberately 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 rounda- bout” (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 pre- vent such “‘desecration.’” Jd. 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 12 spite of the Cross, but because of it. It is unclear if the Cross’s parcel was ever needed by the Roads Commis- sion. See J.A.1033. But it is clear that when the Com- mission acquired the Cross, it was not for traffic and safety concerns. Furthermore, any claim that the Com- mission’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 memo- rial, infra. 5. The Commission’s 1985 Renovation and Rededication of the Cross to all veterans and Town-sponsored events with Chris- tian clergy In 1985, the Commission spent $100,000 of county taxpayer funds to renovate the Cross. Pet.App.8a, 63a; JA.191-92, 427; C_A.App.2484. After the renovation, on November 11, 1985, the Commission, together with the Town, held an elabo- rate “Rededication” ceremony to rededicate the Cross to “all veterans.” Pet.App.62a; J.A.68-69, 191-202, 222- 25. 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 “trusti/ed|) we may assimilate this relationship again.” J.A.195. See also J.A.1392. Over 400 attended the rededication. J.A.195. 13 Since 1960, the Town has embraced the Cross as its own (it was, after all, the Town’s to begin with). JA.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 “Independ- ence Day” ceremony featuring two prayers by Father Chimiak. J.A.187-90. The Town continued to host sim- ilar July celebrations throughout the 1980s and 1990s. J.A.182-86, 225-29. The Town also co-sponsors annual veterans ser- vices at the Cross with the Legion and those services regularly include prayers by lay and ordained Chris- tians. Pet.App.7a-8a, 23a, 6la-62a; J.A.230-73, 1043, 539-608. “Nothing in the record indicates that any of these services represented any faith other than Chris- tianity.” Pet.App.8a. Moreover, every ceremony held for the Cross— its fundraising drive, dedication, “50th anniversary,” and rededication—included prayers by Christians. Pet.App.7a-8a, 23a, 59a; J.A.195-202, 471-88, 1033, 1413-16, 1059-62. 14 6. 2008-present: A crumbling “eyesore” and safety hazard For the first 15 years of the Commission’s owner- ship, the Cross was a low priority. A 1984 article re- ported that this “imposing 40-foot, 16-ton monument” was “deteriorating,” “neglectl|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 Commis- sion 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| vari- able 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 re- pairs 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. 15 When the Commission received Respondents’ cease-and-desist letter in 2012, it didn’t hesitate to “de- lay|| 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............. x 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 siate 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. 16 7. The Latin cross and its exclusively Christian meaning No “symbol [is] more closely associated with a re- ligion 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.° 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 Fra- ser, 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.iy/2Hnyxre (ac- cessed Jan. 14, 2019) (“Indigenous African religions were stifled by the nineteenth century due to the reli- gious oppression by the white Christian slave own- ers”); Meagan Flynn, To Catholics, Juntpero 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 settle- ments 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. 17 Leading non-Christian veterans organizations, representing a myriad of faith groups including “Jew- ish, Hindu, Sikh, Buddhist, Native American spiritual- ist,” as well as Muslim and Atheist, filed statements in the District Court attesting to the fact that the mili- tary 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, 1596- 98. 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, Athe- ists, Sikhs, Beha’is, Wiccars, Buddhists, Native Amer- icans, 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 Ceme- tery 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 commerced this lawsuit in 2014. J.A.27. Plaintiffs have each regularly encoun- tered 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 18 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 Oc- tober 2017, the Fourth Circuit reversed and remanded without “presupposling| any particular result.” Pet.App.31la-32a. Instead, the panel directed the Dis- trict Court “to explore alternative arrangements that would not offend the Constitution.” Jd. 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 over- shadowing 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 exclu- sion.” Pet.App.28a. Judge Gregory concurred on standing and on the applicability of the test enshrined in Lemon uv. Kurtzman, 403 U.S. 602, 612-13 (1970), but faulted the majority for focusing too heavily upon the “reli- gious component” of the 40-foot-tall Latin cross. Pet.App.36a-38a, 41a. 19 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. so -— SUMMARY OF ARGUMENT I. The central principle of the Establishment Clause is that the government cannot align itself with a single religion. LA. 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 re- ligions. The Court has been unanimous that government- sponsored 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. 1.A.1. Every Member of the Court to consider the question has agreed that a prominent sectarian 20 government display violates the Establishment Clause. Every Justice in County of Allegheny v. ACLU, 492 U.S. 573 (1989) joined an opinion citing a promi- nent Latin cross as an archetypal and “obvious” Estab- lishment 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 ver- sion of the Ten Commandments would violate the Es- tablishment 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 Establish- ment Clause would forbid an official World War I cross on the National Mall. Jd. at 728 (concurring). 1.A.2. Justices of this Court have been unani- mous 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 uni- formly found freestanding government cross monu- ments 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 pro- nounced 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 21 symbol. Petitioners ask the Court to overlook that re- ality. They claim that the monument is “merely” “shaped like a cross,” as if that were a coincidence (Le- gion 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 dis- plays 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 argu- ment 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 promi- nently displayed by the government to honor veterans. Every Circuit to consider the constitutionality of a 22 government memorial cross—the Fourth, Seventh, Ninth, and Tenth—held the cross at issue unconstitu- tional. 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 defend- ants 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 government- sponsored 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. Ifthe government prevails, it will be a Pyr- rhic victory indeed, at least for devout Christians. Al- lowing 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 23 Cross dramatically conveys a message of governmen- tal support for Christianity in violation of the Estab- lishment Clause. Pet.App.28a. The 4-story “Calvary Cross” was erected with the Town’s blessing on a prom- inent parcel of Town-owned land. Today it is owned, extensively funded, actively used, promoted, and prom- inently 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 de- tract from the government’s having placed its impri- matur behind it. Indeed, rather than disassociate from the Cross, the Commission and the Town held an elab- orate “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 reli- gious minorities. Il.A. Because the case can be decided on uncon- tested 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 “inde- pendently 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 Dec- laration of Independence” down to the present, has, as 24 Justice Scalia put it: “ruled out of order government- sponsored endorsement of religion ... where the en- dorsement is sectarian ... for example, the divinity of Christ.” Lee v. Weisman, 505 U.S. 577, 641 (1992) (dis- senting; emphasis added). “History and traditions” has never conferred an in- dependent basis to uphold a practice under the Estab- lishment 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 categori- cally 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 sec- tarian preferences. I1.B. Nor should the Court accept the Legion’s in- vitation 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 25 when no ersatz, ‘peer-pressure’ psycho-coercion is pre- sent.” 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 IILA. If the Court reaches the Lemon question, it should reaffirm Lemon. Lemon was a carefully con- sidered 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 con- sistent results both in this Court and in the Circuits. I11.B. The government's prominent Cross runs afoul of the Lemon test because it endorses Christian- ity over all other religions (1.C.) and religion over non- religion. Pet.App.19a-3 1a. IV.A. An affirmance will not doom other war me- morials. The Bladensburg Cross is an aberration and no other monument like it has been identified. Peti- tioners 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, muse- ums, or other multi-faith complexes. The two smaller cross monuments in Arlington, for instance, are set amidst approximately 200 other monuments and 26 memorials and are surrounded by a diverse array of religious symbols, whereas here, Christianity is singu- larly and overwhelmingly represented. IV.B. Nor would an affirmance portend the “mu- tilation” 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 I. The Bladensburg Cross violates funda- mental Establishment Clause principles ir- respective of the Lemon test. The “central meaning” of the Establishment Clause is that the government cannot favor or align it- self 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. 27 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 Establish- ment Clause is that the government can- not 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 disagrecment that the Clause “means at the very least that government may not demonstrate a prefer- ence for one particular sect or creed (including a pref- erence for Christianity over other _religions).” Allegheny, 492 U.S. at 605 (emphasis added). See Board of Education of Kiryas Joel Village School Dis- trict v. Grumet, 512 U.S. 687, 748 (1994) (Scalia, J., dis- senting) (“I have always believed ... that the Establishment Clause prohibits the favoring of one re- ligion over others.”). Our Framers knew “from bitter personal experi- ence,” that “whenever government had allied itself with one particular form of religion, the inevitable re- sult had been that it had incurred the hatred, disre- spect 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 28 the support of government to spread its faith.” /d. at 431. In the Court’s landmark decision applying the Es- tablishment Clause to the states, both the majority and dissent relied on that history to unanimously con- clude 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 31- 32 (Rutledge, J., dissenting). Since Everson, this has re- mained 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 neu- trality between religion and religion” and calling the prohibition “absolute”); Zorach v. Clauson, 343 U.S. 306, 314 (1952). Indeed, the Court reiterated this es- sential 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 re- ligious 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 government- sponsored endorsement of religion ... where the en- dorsement 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 29 religious belief to generate civil dissension and civil strife.” Jd. 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 pre- sent.” Id. at 641. Justice O’Connor agreed that “|w|hile general ac- knowledgments of religion need not be viewed by rea- sonable observers as denigrating the nonreligious, the same cannot be said of instances ‘where the endorse- ment is sectarian.’” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 42 (2004) (O’Connor, J., concur- ring) (quoting Lee, 505 U.S. at 641 (Scalia, J., dissent- ing)). Justice Thomas agreed in Newdow “that the Establishment Clause ‘bar|s| governmental prefer- ences 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 consti- tutional “defect” of extending government funding “only to Christian sects”)). Justice Rehnquist, too, had no doubt that the Clause was designed to bar the gov- ernment “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 “non- sectarian 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 Command- ments, McCreary, 545 U.S. at 893-94 (Scalia, J., 30 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 favor- itism applies with special force to religious displays. “(Blecause 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., concur- ring). “Speakers, no matter how long-winded, eventu- ally 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. Sum- mum, 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.” /d. 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 31 religious belief.” Pinette, 515 U.S. at 765. And the “more sectarian the display, the closer it is to the original tar- gets 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 sec- tarian 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 créche in Alle- gheny was unconstitutional—despite being temporary and “privately sponsored” like the Klan’s cross in Pi- nette—because the courthouse staircase was not “open to all on an equal basis, so the County was favoring sectarian religious expression.” Jd. at 764 (citing Alle- gheny, 492 U.S. at 599-600, & n.50). In McCreary, Justice Scalia likewise had no doubt that the Establishment Clause would prohibit “govern- mental endorsement of a particular version of the Dec- alogue as authoritative.” 545 US. at 894, & n4 (dissenting). He further indicated that the govern- ment’s promotion of a display invoking “Jesus Christ” would certainly be unconstitutional too. Jd. at 897. Jus- tices 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. Jd. at 909, & n.12. Thus, every Justice in McCreary agreed that a promi- nent sectarian display would violate the Establish- ment Clause. Jd. at 869 (majority); id. at 883 (O’Connor, J., concurring); id. at 894 n.4 (Scalia, J., dissenting); id. 32 at 909, & n.12 (Scalia, Thomas, Kennedy, Jd., 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 Ken- nedy, White, Scalia, and Chief Justice Rehnquist would have upheld the temporary, privately-sponsored créche at issue, they admonished that a conspicuous perma- nent Latin cross would not meet the same fate and this was irrespective of whether Lemon applied: I doubt not, for example, that the Clause for- bids a city to permit the permanent erection of a large Latin cross on the roof of city hall. This is ... because such an obtrusive year- round religious display would place the gov- ernment’s weight behind an obvious effort to proselytize on behalf of a particular religion. 492 US. at 661 (concurring in part and dissenting in part; emphasis added); accord Buono, 559 US. at 715 (plurality); Newdow, 603 F.3d at 1017 n.3 (Kavanaugh, J., concurring). In Buono, the plurality reiterated that “‘the [Es- tablishment] Clause forbids a city to permit the per- manent erection of a large Latin cross on the roof of city hall.’” 559 U.S. at 715 (quoting Allegheny, 492 US. at 661 (Kennedy, J.)). The plurality contrasted this “ex- treme” example with the 6-foot-tall remote cross at is- sue, opining it was “not an attempt to set the imprimatur of the state on a particular creed.” Id. 33 Justice Alito reasoned that “in this part of the country ... boundaries between Government and private land are often not marked.” Jd. at 724-25 (concurring). Pri- vate citizens placed “their monument on that spot, ap- parently 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.” Jd. (em- phasis 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 pri- vate, 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 ephem- eral display of a secularized national holiday (Alle- gheny) 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 vet- erans “irrespective of their religion.” Comm’n Br.19, 24. This case involves an “imposing 40-foot, 16-ton” per- manent Latin cross (J.A.1420) towering over a heavily- trafficked intersection that marks the entrance to town. Pet.App.6a, 8a, 54a. 34 2. The Latin cross is not a secular sym- bol 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 “pros- elytizels] on behalf of a particular religion.” Allegheny, 492 U.S. at 661 (Kennedy, J., concurring and dissent- ing). 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 un- constitutional 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 (Ken- nedy, J., concurring and dissenting, joined by Rehnquist, C.J., White, and Scalia, JJ.) (a large perma- nent prominently-displayed cross would place the “government’s weight behind an obvious effort to pros- elytize on behalf of a particular religion”). Every Justice in Pinette agreed that the Latin cross is a sectarian symbol rather than a “benign” ecu- menical 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., concur- ring) (the cross is “one of the most sacred of religious 35 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., concur- ring) (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 non- Christian religion. 559 U.S. at 725-26 (Alito, J., concur- ring) (“The cross is of course the preeminent symbol of Christianity” and not a symbol to commemorate “Jew- ish 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 signifi- cance 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 Chris- tianity”). 36 As relevant here, Judge O’Scannlain joined his fel- low panelists (Lay and Pregerson) in holding a war me- morial 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’Scannilain, 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 govern- ment memorial assertedly free of any religious mes- sage.” 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 Christi- anity and Judaism respectively” and “their primary ef- fect is to give the impression that only Christians and Jews 27e being honored by the county.” Greater Hou- ston Chapter of ACLU v. Eckels, 589 F. Supp. 222, 234- 35 (S.D. Tex. 1984), reh’g denied, 763 F.2d 180 (5th Cir. 1985) (per curiam). 37 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 sol- diers 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, com- memorates, honors, or respects non- Christian veterans. The Commission maintains that the Latin cross has “a significant secular meaning to commemorate valor and sacrifice,” and honors all “the fallen,” “irre- spective 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, Human- ists, Muslims, Atheists, Buddhists, Unitarians and oth- ers 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. 38 As the Jewish War Veterans of the United States made emphatically clear in their amicus brief (at 2, 14) in Buono (No. 08-472): [Tihe Government sends the unmistakable message that it deems less worthy of honor the sacrifices of non-Christian veterans, in- cluding 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 display- ing 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 crucifix- ion through association with brave Americans.” /d. at 8. Even the Legion conceded: “(T]he cross as a symbol of death and sacrifice has its roots firmly in the cul- tural heritage of Christianity.” J.A.719 (emphasis added). For many Jews, the Latin cross not only symbol- izes Christianity, but also the “outright oppression and persecution of Jewish people.” Friedman v. Bd. of Cnty. Co.om'’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.”). 39 The Council on American Islamic Relations, the nation’s largest Muslim civil rights organization, sub- mitted a motion to oppose the Bladensburg Cross on the grounds that “Christian symbols do not represent Muslim service members.” J.A.1596-98.° The president of the Military Religious Freedom Foundation, which represents “a myriad faith and non- faith groups,” including “Jewish, Hindu, Sikh, Bud- dhist, [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 ser- vice, as well as the service of other non-Christians . is eushaded and diareapected when a Christian cress is presented as a public memorial.” J.A.326-28. See also JA.333-36. Numerous other non-Christian veterans and their families have made it known that the Bladensburg Cross does not commemorate their sacrifices. E.z., JA.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 Mus- lim American Hero, The New Yorker (Aug. 15, 2016), https:// bit.ly/2D90PV3 (“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.”). 40 anyone else’s?”); J.A.1537 (“I am a disabled combat Ma- rine. I served with Muslims, Christians, atheists, even a Satanist and a Wiccan. So, why should it only repre- sent [Cjhristians?”); C_A_App.3262 (“I’m a veteran and an Atheist. How does this show reapect [sic] for my ser- vice 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 cru- cifixion of Jesus Christ” (Pet.App.20a-21a), the Cir- cuits were already in firm agreement that the Latin cross “transcend(s] mere commemoration” and _ pro- motes 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 “ex- clusion.” 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 a8 a war memorial, and “indeed perhaps because of it,” a government war memorial cross communicates 41 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.15- 18 (17-1717))}—and every case involving a cross dis- played as a government memorial held the display un- constitutional. 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); Gonza- les, 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 fa- vors Christians while “discriminating against the be- liefs of patriotic soldiers who [are not] Christian.” Allegheny, 492 U.S. at 615 n.61 (citing Eckels, supra). 42 2. The Latin cross is not a universal sec- ular 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 memo- rialization, but it remains a sectarian, Christian sym- bol.” 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 be- cause 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 Jew- ish 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 43 small crosses in foreign fields marking the graves of Americans who fell in battles, bat- tles 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.” Jd. at 726 (concur- ring). He stressed that more “than 3,500 Jewish sol- diers 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 Ken- nedy’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 (empha- sis added).’ 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 44 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.21la. The court observed that the headstones of the fallen in Arlington include separate symbols for Buddhism, Wicca, Islam, Judaism, and Atheism, un- derscoring 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 uni- versal—memorials to the lives of Christian soldiers.” Pet.App.21a. In finding the respective displays uncon- stitutional, all three post-Buono Circuits recognized that when the Latin cross is prominently displayed as a government war memorial, it “suggests that the gov- ernment 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 1124- 25. In Buono, Justice Alito referred to photographs de- picting 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). 45 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,* 12,000 Native Americans,’ 5,000 Muslims,'® Chinese-American Bud- dhists, 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."' 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 head- boards 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 gravemark- ers: a Christian Cross, a plain headstone with no religious sym- bolism, and a Muslim headstone with a curved, Moorish style top. JA.165. 46 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 reli- gious 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 Wel- fare 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 Jew- ish Welfare Board’s testimony. Instead, it (at 6) selec- tively 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 com- rades.’” Michael Sledge, Soldier Dead: How We Recover, Identify, Bury, & Honor Our Military Fallen 205 (2005). This simply coincides with the Jewish Welfare Board’s 47 preference for a uniform slab (J.A.1201);” it does not support the Commission’s assertion that “[(sleveral Jewish families elected the cross for their loved ones’ graves.” Comm’n Br. 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; Eck- els, 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-foot- tall 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, una- dorned 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 aggran- dizement and universalization of religion, and not the “ The Quartermaster General also advocated for the slab. JA.1175, 1231, 1439. 48 message of individual memorialization and remem- brance 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 Cal- vary, as described in the Bible.” Pet.App.7a; J.A.428. This intention was made explicit in numerous contem- poraneous newspaper articles (Pet.App.73a; J.A.428- 33) and by the state representative who, at the 1925 dedication ceremony, proclaimed the Cross to be “sym- bolic 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 de- veloped at the Shrine [of the Sacred Heart, a Roman Catholic parish] ... [clonstructed 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 commit- tee’s second treasurer a year after the Cross’s ground- breaking, who referred to the Cross as a proxy for her son’s grave when she was soliciting funds from a con- gressman. 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 49 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 Com- mission has since rededicated the Cross as a war me- morial 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 or- igins by inviting a Catholic priest to deliver prayers at the rededication ceremony. J.A.195, 199-202. 3. Allowing the government to rede- fine 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 (em- phasis added). 50 The Founders were concerned about two forms of degradation. First, they feared that the union of gov- ernment and religion would leave the impression that the endorsed faith was not strong enough to flourish without government support. As Thomas Jefferson ob- served, 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 ex- ternally profess and conform to it.” Justice Jackson captured the corollary of this principle when he ob- served 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 Cae- sar.” Zorach, 343 U.S. at 324-25 (Jackson, J., dissent- ing). 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., con- curring). “The favored religion may be compromised as “ Thomas Jefferson, The Virginia Statute for Religious Free- dom (Jan. 16, 1786), reprinted in FOUNDING THE REPUBLIC: A Doc UMENTARY History 94-95 (John J. Patrick ed., 1995). 51 political figures reshape the religion’s beliefs for their own purposes.” Lee, 505 U.S. at 608 (Blackmun, J., con- curring). 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, al- lowing the Commission to display the Latin cross to symbolize “anything other than Christianity may be deemed offensive to Christians.” Pet.App.21la. Rever- end 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 blas- phemy, equivalent to taking the Lord’s name in vain, using the cross where God and Christ would not want it to be used. The [Bladens- burg] 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 detri- mental 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 some- thing to hang in the house ‘to tie the room together’. . . or an ornament to wear”). 52 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 secu- lar significance,” that “I would hope you don’t water it down too much.” That is the precise aim of the Com- mission’s demand, which is that it be allowed to “al- ter| | [the Latin cross’s] exclusively sectarian meaning” (at 16) by having it redefined as a “secular” and “be- nign” 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 gov- ernment,” 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 dis- play “holy things in public places” is “often that of a television commercial on a captive audience—boredom and resentment.”“ Or, as Justice Kennedy observed, “|to] place these religious symbols in a common hall- way 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., con- curring 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. 53 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 ag- grandizes it. This Court’s cases make clear that the “|p|lace- ment of [a] cross on Government-owned land” is uncon- stitutional 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 contex- tual 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 predomi- nates; (5) the nature of the property; and (6) in a bor- derline 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 54 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 créche 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 Christian- ity 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 promi- nently 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 55 terrain. 559 U.S. at 724-25 (Alito, J., concurring). In the present case, the government’s imprimatur is unmis- takable. 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 par- ticipated 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 ma- jor state and county government officials” since its in- ception. 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 key- note 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 “as- similate this relationship again.” Pet.App.62a; J.A.195. Third, this Cross is owned and maintained exclu- sively by the government on government property. Cf. Allegheny, 492 U.S. at 667 n.5 (Kennedy, J., concurring and dissenting) (“Neither the créche nor the menorah at issue in this case is owned by a governmental en- tity.”); Lynch v. Donnelly, 465 U.S. 668 (1984) (créche displayed on private property). 56 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 dis- play, let alone a massive sectarian monument. See also Allegheny, 492 U.S. at 664 (Kennedy) (“[nJeither 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 fi- nanced by voluntary private contributions”) (citations omitted). Indeed, in Buono, the plurality stressed that when that cross fell into disrepair, “community mem- bers repeatedly took it upon themselves to replace it.” 559 U.S. at 716 (emphasis added). 2. The Cross is a permanent, not ephem- eral, 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 créche display in Allegheny. Har- ris, 927 F.2d at 1412. See Allegheny, 492 U.S. at 661, 664-65, n.3 (Kennedy, J., concurring and dissenting) 57 (distinguishing a “permanent,” “year-round” and “con- tinual” Latin cross on city property from a temporary créche); Newdow, 603 F.3d at 1017 n.3 (Kavanaugh, J., concurring); Friedman, 781 F.2d at 782 (“This [cross] is not like the créche display upheld in Lynch.”); Gonza- les, 4 F.3d at 1423 (the cross was “not seasonally dis- played”). 3. The Cross is the Town’s most promi- nent 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 senti- ment 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.” Jd. at 725, 728 (concurring). The Court made a similar observation when it struck down a créche displayed in the lobby of a court- house in Allegheny, 492 U.S. at 598. By “permitting the ‘display of the créche in this particular physical set- ting,’” the Court 1ound, “the county sends an unmis- takable message that it supports and promotes the . créche’s religious message.” Jd. at 600. For “[n]o viewer could reasonably think that it occupies this location 58 without the support and approval of the government.” Id. at 599-600. Standing four stories tall over a busy highway me- dian that marks the entrance to town (J.A.40-41, 764, 918), this Christian monolith is “the town’s most prom- inent 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.” /d. E.g., 23 CFR § 710.403(a); J.A.1484, 1501. 4. The Cross dominates its surroundings and is not integrated into a larger dis- play. The Cross also clearly “dominates its surround- ings.” Pet.App.3 1a; see J.A.44-47, 423-26, 764, 918, 931, 1514. It is thus incomparable to the small seasonal créche 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 repre- senting 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 na- tivity did not “taint” the city’s exhibit but merely rep- resented a symbol of a secularized “National Holiday.” Id. at 681-82, 686. 59 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 créche’ in the larger holiday display,” the “Lynch ma- jority recognized that the créche 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 Christian- ity” whereas the créche is a “mixed case.” St. Charles, 794 F.2d at 270-72. “Christmas is a national holiday, celebrated by nonobservant Christians and many non- Christians.” Jd. But “the Latin cross has not lost its Christian identity.” Id. Accord Allegheny, 492 U.S. at 664-65 (Kennedy, J., concurring and dissenting) (un- like a Latin cross, the créche and menorah “have ac- quired a secular component”). This 40-foot-tall Cross is thus readily distinguish- able 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) (Gor- such, 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 histor- ical markers,” that, together, reflected “the state’s po- litical and legal history.” 545 U.S. at 681-82, 688-90 (plurality). The plurality found that because the “Com- mandments have an undeniable [secular legal] histor- ical meaning,” the “inclusion” of this “monument in 60 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 Command- ments with numerous similar-sized and similar- themed monuments suggested that the state intended the “nonreligious aspects of the tablets’ message to pre- dominate.” 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 Com- mandments would violate the Establishment Clause. 545 U.S. at 894 n.4 (Scalia, J., dissenting). In striking down the Decalogue, the majority observed that alt- hough the “courthouses contained other displays,” there was no “suggestion that the Commandments dis- play was integrated to form a secular display.” Jd. at 869 n.16."" 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 decora- tions on the staircase. 492 U.S. at 581, & 598 n.48. The “créche, with its fence-and-floral frame” “was distinct.” ‘*® Justice Scalia dissented because the display was nonsec- tarian and the walls “were already lined with historical docu- ments and other assorted portraits” and the Commandments, in his view, had no “greater prominence.” Jd. at 903 (Scalia, J., dis- senting). 61 Id. Indeed, the “floral frame, like all good frames, serveld| only to draw one’s attention to the message inside the frame.” Jd. at 599. This Cross is not inte- grated with other monuments either; rather, quite un- like 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 his- tory, 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 (refer- ring to the Cross today as the “centerpiece”). 5. The nature of the property on which this Cross stands makes the govern- ment’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 en- dorsement of that content.” Lynch, 465 U.S. at 692 62 (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 626- 27. See also Buono, 559 U.S. at 720 (plurality). This Cross is not an artifact displayed as an ex- hibit in a museum or other multi-faith complex such as a cemetery (infra at IV.A.2.). Pet.App.94a. Cf Amer- ican Atheists, Inc. v. Port Authority, 760 F.3d 227, 2334- 36 (2d Cir. 2014) (upholding “a particular artifact” donated along with “more than 10,000 artifacts” dis- played in museum); Trunk, 629 F.3d at 1115 n.16 (dis- tinguishing the 1607 Cape Henry cross displayed as an exhibit in historic Jamestown). Rather, this solitary “Calvary Cross” was deliber- ately placed on Town property and remains alone on the government traffic island as a government- dedicated 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 Commis- sion’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.”). 63 6. The longevity of this Cross has in- tensified its exclusionary sectarian meaning. The amount of time this Cross has stood as the “town’s most prominent symbol” (J.A.868) has “serveld| 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 pop- ulace with the idea that our government is Chris- tian.”); 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 sen- timent 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.”); CA.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 Jus- tice Breyer’s concurrence in Van Orden holds that lon- gevity is “determinative” regardless of how sectarian or prominent the display may be. Comm’n Br.44; Le- gion Br.58. The “measure of the seriousness of a breach 64 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 establish- ment.” 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 sec- tarian, has consistently been used for “prayer” during services, and “|njothing in the record indicates that any of these services represented any faith other than Christianity.” Pet.App.8a; eg., J.A.218 (First Baptist Church; St. Jerome’s Catholic Church); J.A.474 (St. Luke’s Protestant Episcopal Church; St. James Catho- lic Church); J.A.477 (St. Luke’s); J.A.527 (same); JA.598 (Faith-Deliverance-Soul Saving Station); JA610 (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 65 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’ reli- gious message”); Allegheny, 492 U.S. at 599 (créche’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 w. no evidence the delay in litiga- tion was “due to a climate of intimidation.” 545 U.S. at 702 (concurring). There are many reasons why reli- gious minorities would not want to be the face of a chal- lenge 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; empha- sis 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 re- buke.” 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 un- til this Court intervened in 1961, and the state consti- tution still contains the provision. Pet.App.23a-24a. And in the 1920s in Bladensburg, the Latin cross was 66 used by the Klan to intimidate Jews and other reli- gious 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, Pen- sacola Man’s Facebook Post Targets AHA Lawyer In Cross Case, Ignites Firestorm, ABC3 (June 22, 2017), https//bit.ly/2RtBqeH (“Some attack Miller with de- rogatory 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. ll. The “history” and “coercion” tests advo- cated 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 jetti- son 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 over- haul 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 67 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 co- ercive precisely because they are ‘passive.’” Legion Br.53. Thus, the Legion is demanding a categorical rule that gives the greenlight to virtually all religious dis- plays, regardless how sectarian, conspicuous, contem- porary, or religiously motivated. These arguments are as “seismic” as they are “unconvincing.” McCreary, 545 US. at 861. A. The “history” test is unworkable and unprincipled, has been repeatedly re- jected by this Court, and is in any event met here. 1. Town of Greece did not modify the le- gal standard for legislative-prayer, let alone for Establishment Clause ju- risprudence generally. The argument that Town of Greece “held that a display” is constitutional if it “fits within a longstand- ing 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., dis- senting). 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 sum- marized: “All that the Court does today is to allow a town to follow a practice that we have previously held 68 is permissible for Congress and state legislatures.” 572 U.S. at 603 (concurring). In Marsh, legislative prayer was upheld in a nar- row 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 re- ligion. 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 re- peatedly 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 concur- rence in Allegheny, which both condemned a govern- ment-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 ma- jority in Santa Fe, 530 U.S. 290, which invalidated prayer under Lemon’s purpose and effect prongs—a re- sult that he noted in Town of Greece was not impacted by the decision. 572 U.S. at 587. 69 2. This Court has never held—and in- deed has disavowed—that a practice is authorized under the Establish- ment 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), re- affirming that “the basic purpose” of the Establish- ment 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 provi- sions 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 ac- ceptance, without more, could not legitimize the prac- tice. Indeed, the Court has repeatedly struck down practices with strong historical pedigrees. The 6-1 En- gel decision struck down nondenominational school prayer, 370 U.S. at 425, notwithstanding the New York Court of Appeals finding that “l|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 70 from Almighty God” and is “an integral part of our na- tional 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 estab- lished Church of England found themselves suffi- ciently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official reli- gion 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 release- time program despite the practice’s long history. See id. at 256 (Reed, J., dissenting) (discussing historical ac- ceptance of practice). The Court invalidated the Mary- land 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 0.8 (1989) (“The fact that such exemptions are of long standing cannot shield them from the stric- tures 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 pat- terns” 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 pro- mote religion to the public (id. at 791-93, n.16); (2) The practice was ecumenical and nondiscriminatory; it did 71 not “advance any one faith” in the prayers or the clergy selection (id. at 792-95); and (3) The First Congress au- thorized legislative prayer at the same time that it pro- duced 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 “lalny test the Court adopts must acknowledge a prac- tice that was accepted by the Framers and has with- stood 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 politi- cal change.” Id. (emphasis added). The Court specifi- cally cautioned that its opinion “must not be understood as permitting a practice that would amount to a constitutional violation if not for its his- torical foundation.” Jd. 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, in- fra. 72 3. Even if Town of Greece were applica- ble here, it would not call for a re- versal. i. This imposing 40-foot Cross is not an internal practice to accommo- date the spiritual needs of law- makers. First, Bladensburg’s “monster calvary cros™” (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 in- vokling] 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 law- makers themselves.” Jd. And unlike prayers, “which by their nature are fleeting,” Newdow, 603 F.3d at 1017 n.3 (Kavanaugh, J., concurring), this Christian monu- ment is a permanent embodiment of the government’s reverence for its Christian soldiers. ii. The Bladensburg Cross is not ecu- menical. Second, the Cross “proselytizels| on behalf of a particular religion.” Allegheny, 492 U.S. at 661 (Ken- nedy, J., concurring and dissenting). “Historical prac- tices” 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 73 Greece upheld legislative prayer based on the Court’s understanding that “the Framers considered legisla- tive prayer a benign acknowledgment” of religion be- cause “no faith” was “excluded” or “favored.” 572 U.S. at 571,577. The Court stressed the importance of “non- discrimination” and upheld Greece’s practice because even an “atheist” could “give the invocation.” Jd. 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 sym- bol. Lastly, there “is a complete lack of evidence that our founding fathers were aware of the practice of plac- ing crosses” for prominent display on federal land. Eck- els, 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 display- ing 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 ex- pressly approved .. . a nativity scene”). Petitioners point to nothing to the contrary. In- stead, they rely on the actions of “the Jamestown colo- nists” and other Christian “European settlers” long before the Constitution was ratified and even longer 74 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; empha- sis added). “It was precisely because Eighteenth Cen- tury Americans were a religious people divided into many fighting sects that we were given the constitu- tional mandate to keep Church and State completely separate.” Zorach, 343 U.S. at 318-19 (Black, J., dis- senting). “With the power of government supporting them, at various times and places, Catholics had per- secuted Protestants, Protestants had persecuted Cath- olics, ... 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 Corco- ran, For Which It Stands, An Anecdotal Biography of the American Flag «27-30 (2002). The “crosses” used by the Union Army (Comm’n Br46) were not Latin 75 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 dis- tinctive 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 mil- itary decoration,” have lost their Christian association, “the Latin cross has not”). The Commission goes on to discuss early 20th cen- tury examples of crosses used “to honor the contribu- tions 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 «sone 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 sac- rifice” 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-Chris- tians, 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 Com- monwealth countries’ World War I cemeteries” (Comm’n Br.9) assuredly do not reflect the cross’s 76 “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/1038 1/90357. 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 religicns other than Christianity. J.A.157-60. For in- stance, the Indian Memorial at Neuve Chapelle com- memorates 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 na- tional motto and pledge, the display of religious paint- ings in museums, and the depiction of Moses with the Ten Commandments that graces this Court’s oral-ar- gument chamber. 465 U.S. at 675-78. Nowhere in that opinion can one find historical support for displaying crosses. The Van Orden plurality canvassed governmen- tal buildings, presidential papers, and legislative enactments for display and mention of the Ten 77 Commandments. 545 U.S. at 688-90. But the Com- mandments “are not so closely associated with a single religious belief.” McCreary, 545 U.S. at 909 (Scalia, J., dissenting).'* 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.” Jd. at 894 n.4 (Scalia, J., dissenting). Indeed, Justice Scalia canvassed founding-era his- tory 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.” Jd. at 897. Justice Scalia noted, for example, that Washington’s Procla- mation “was scrupulously nondenominational.” Jd. 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. Com- pare J.A.1570, with J.A.765, 931. 78 “Jewish soldiers,” Buono, 559 U.S. at 725-26 (Alito, J., concurring), and all other patriotic non-Christian sol- diers, Allegheny, 492 U.S. at 615 n.61. The Legion contends (at 19) that the “inquiry is broader than merely asking whether the specific prac- tice” was “accepted by the Framers,” because in Alle- gheny, 492 U.S. at 670, Justice Kennedy was concerned with invalidating “‘ [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0835%3A26. Public record. Not legal advice.