# Amicus Curiae Brief — Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 451 (2018) (No. 17-1717)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0835%3A50

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

Nos. 17-1717, 18-18
In the Supreme Court of the United States

THe AMERICAN LEGION, et al.,
Petitioners,

Vv.

AMERICAN HuMANIST ASSOCIATION, et ai.,

Respondents.

MARYLAND-NATIONAL CaprrAL PARK AND PLANNING COMMISSION,
Petitioner,
Vv.

AMERICAN HUMANIST ASSOCIATION, et ai.,

Respondents.

On Writs of Certiorari to the United States
Court of Appeals for the Fourth Circuit

BRIEF OF JUSTICE AND FREEDOM FUND AS
AMICUS CURIAE IN SUPPORT OF PETITIONERS

James L. Hirsen

Counsel of Record
505 S. Villa Real Drive, Suite 208
Anaheim Hills, CA 92807
(714) 283-8880
james@jameshirsen.com
Deborah J. Dewart
620 E. Sabiston Drive
Swansboro, NC 28584-9674
(910) 326-4554
debcpalaw@earthlink.net

Counsel for Amicus Curiae

Becker Gallagher - Cincinnati, OH - Washington, D.C. ~- 800.890.5001

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................. iii
INTEREST OF AMICUS CURIAE ............. 1
INTRODUCTION AND

SUMMARY OF THE ARGUMENT .......... 1
Dt thc ibebankeinasaenseeseccvceece 5

L. NO ONE HAS AN ABSOLUTE RIGHT TO
BE FREE OF OFFENSE IN GENERAL OR
RELIGION IN PARTICULAR. ........... 5

i. THE GOVERNMENT IS NOT
ADVOCATING A MESSAGE OF ITS OWN.
PREMEESSURED EOC SEDC HOS Cow eee cececees 10

B. A monument on public land does not
necessarily represent the government’s
ee ee 12

C. The government may acknowledge the
nation’s religious heritage—including

DT Gubderdgebeevestoeseee 15
D. The government may accommodate
Dt Uses heen d kegenagee ad eu esp x 18

IU. THE GOVERNMENT PRESERVES AND
RESPECTS A COMMEMORATIVE
MESSAGE CREATED BY PRIVATE
i icvteen ews erderducsetned se 20

ss

[V. THISCOURT SHOULD CRAFT A TEST TO
BRING CLARITY TO CASES INVOLVING
RELIGIOUS SYMBOLISM ON PUBLIC
PU Be ccc dec vcccccscscsceseess 23

CONCLUSION

TABLE OF AUTHORITIES

Cases

ACLU v. Rabun Cty. Chamber of Commerce, Inc.,
698 F.2d 1098 (11th Cir. 1983) .............. 7

Am. Atheists, Inc. v. Duncan,
637 F.3d 1095 (10th Cir. 2010) .......... 22, 24

Am. Atheists, Inc. v. Port Auth.,
760 F.3d 227 (2d Cir. 2014) ................ 17

Am. Humanist Ass'n v. Maryland-National Capital
Park & Planning Comm'n,
874 F.3d 195 (4th Cir. 2017) ........... passim
Bd. of Ed. of Westside v. Mergens,
Se SEED eddddccecécaccecatecae 11

Buono v. Kempthorne,
527 F.3d 758 (9th Cir. 2008) ................ 4

Capitol Square Review & Advisory Bd. v. Pinette,
515 U.S. 753 (1995) ................ 5, 8, 9, 14

Card v. City of Everett,
520 F.3d 1009 (9th Cir. 2008) .............. 21

Church of Holy Trinity v. United States,
Pe .ecuntdecsducdcnceen as 16

County of Allegheny v. American Civil Liberties
Union, Greater Pittsburgh Chapter,
Ge A PEED ec cccccccedsszbeccosces 6

Elk Grove Unified Sch. Dist. v. Newdow,
ee es RGD wc mecccccuscsccsss 2, 5, 9, 18

iv

Engel v. Vitale,

RN ER eer a ee 15
Everson v. Board of Education of Ewing,

ee ee Es cach busts ceesduseewees 20
Lee v. Weisman,

8 Ere ee ee 7
Lemon v. Kurzman,

re co cewenandeeséshbees 20
Lynch v. Donnelly,

465 U.S. 668 (1984) ..............----- passim
Marsh v. Chambers,

STE, FG ow cccccccccecccess 6, 16, 17
McCreary County v. ACLU,

i ee ccc aee snes ee e's 6, 8
McCollum v. Board of Education,

ee sd be caawak'esceeaceeeews 18
Pleasant Grove City v. Summum,

Se GED cc cncccseveucecion passim
Salazar v. Buono,

569 U.S. 700 (2010) ............--.--- passim
Santa Fe Independent School Dist. v. Doe,

EEE cascode ccctnecacess 2,11
School Dist. of Abington Township v. Schempp,

ED no cee cscs ecnecedeceoses 15
Separation of Church & State Comm. v. City of

Eugene,

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

Vv

Sherman v. Community Consolidated School
District 21 of Wheeling Township,
980 F.2d 437 (7th Cir. 1992) ................ 6

Suhre v. Haywood Cty.,
131 F.3d 1083 (4th Cir. 1997) ............... 7

Town of Greece v. Galloway,
134 S. Ct. 1811 (2014) ................. 16, 17

Trinity Lutheran Church of Columbia, Inc. v.
Comer,
sg X . , ee 20

Utah Highway Patrol Ass’n v. Am. Atheists, Inc.,
565 U.S. 994 (2011) .................... 8, 12

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

Vidal v. Phila.,
SP ED a vec envawecencucseeesene 16

Wallace v. Jaffree,
en on as cu evwsnedeeunes 3

Walz v. Tax Commission,
397 U.S. 664 (1970) ...................5.. 18

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

Other Authorities

David E. Bernstein, Defending the First Amendment
From Antidiscrimination, 82 N.C. L. Rev. 223
eee re ere eee eer 5

vi

Emily Fitch, An Inconsistent Truth: The Various
Establishment Clause Tests As Applied in the
Context of Public Displays of (Allegedly)
“Religious” Symbols and Their Applicability
Today, 34 N. fll. U. L. Rev. 431 (2014) .......

l

INTEREST OF AMICUS CURIAE'

Justice and Freedom Fund, as amicus curiae,
respectfully urges this Court to reverse the decision of
the Fourth Circuit.

Justice and Freedom Fund (*JFF”) is a California
non-profit, tax-exempt corporation formed on
September 24, 1998 to preserve and defend the
constitutional liberties guaranteed to American
citizens, through education, legal advocacy, and other
means. JFF’s founder is James L. Hirsen, professor of
law at Trinity Law School and Biola University in
Southern California and author of New York Times
bestseller, Tales from the Left Coast, and Hollywood
Nation. Mr. Hirsen is a frequent media commentator
who has taught law school courses on constitutional
law. Co-counsel Deborah J. Dewart is the author of
Death of a Christian Nation (2010) and holds a degree
in theology (M.A.R., Westminster Seminary, Escondido,
CA). JFF has made numerous appearances in this
Court as amicus curiae.

INTRODUCTION AND
SUMMARY OF THE ARGUMENT

The Bladensburg WWI Memorial originated a
century ago with a committee of mothers whose 49 sons
had lost their lives in the First World War. These
women wanted to honor and preserve the memory of

' The parties have consented to the filing of this brief. Amicus
curiae certifies that no counsel for a party authored this brief in
whole or in part and no person or entity, other than amicus, its
members, or its counsel, has made a monetary contribution to its
preparation or submission.

2

their sacrifice. A local chapter of the American Legion
joined them to complete the needed funding, and the
“Peace Cross” was constructed between 1919 and 1925
at the end of the National Defense Highway. The
soldiers’ names are engraved on a plaque, and the
words “valor, endurance, courage, and devotion” are
inscribed at the base of the monument.

It would be “ironic indeed” if the Constitution were
used to erase the memory of soldiers who died to
preserve the very liberties it guarantees, merely
because a well-recognized image of military sacrifice
resembles a religious symbol. Elk Grove Unified Sch.
Dist. v. Newdow, 542 U.S. 1, 44-45 (2004) (O’Connor, J.,
concurring); Lynch v. Donnelly, 465 U.S. 668, 686
(1984) (“It would be ironic .. . if the inclusion of a
single symbol of a particular historic religious event . . .
would so ‘taint’ the city’s exhibit as to render it
violative of the Establishment Clause.”). Neither
history nor case law mandates the Fourth Circuit's
rigid application of the Establishment Clause. The
court ignores the history and context of the
Bladensburg WWI Memorial in an opinion that
“bristles with hostility” toward religion. Santa Fe
Independent School Dist. v. Doe, 530 U.S. 290, 318
(2000) (Rehnquist, C.J., dissenting). This Court has
consistently refused to adopt a simplistic, absolutist
approach to the Establishment Clause that would
undermine its objectives by invalidating every
government act that might incidentally confer some
benefit on religion. Lynch, 465 U.S. at 678. Here, the
Memorial was never intended to convey either a
government message or a religious message. The
Maryland-National Park Capital Park and Planning
Commission took title to the land and assumed

3

maintenance of the monument solely for purposes of
traffic safety. The Commission acted to preserve and
honor a commemorative message created decades
earlier by private citizens, not to convey or endorse a

religious message.

In America, there is a right to select any religious
faith—or none. Wallace v. Jaffree, 472 U.S. 38, 52-53
(1985) (“the individual freedom of conscience protected
by the First Amendment embraces the right to select
any religious faith or none at all”). The Constitution
protects conscience and mandates tolerance. But the
Establishment Clause does not require that the public
square be purged of all religious symbolism. Objectors
are free to disregard public acknowledgments of the
nation’s religious heritage but have no iron-clad right
to be free of all exposure to such references. Yet
Establishment Clause cases have granted “offended
observers” standing to challenge perceived government
endorsement, and judgments are then based on the
imaginations of the nebulous “reasonable observer.”
This chaotic jurisprudence jeopardizes the freedom of
state and local governments to acknowledge religion,
accommodate religion, preserve religious liberty, and
incorporate a religious symbol into a secular message—
such as the commemoration of fallen soldiers. A passive
monument does not bind the conscience or coerce
support for religion. Eliminating even nominal
recognition of the nation’s religious heritage is
exclusionary and even threatening to Americans who
treasure that heritage.

War memorials all across America utilize the cross
to symbolize the sacrifice of fallen soldiers, particularly
those who served in World War I. Examples include the

4

Argonne Cross Memorial and the Canadian Cross of
Sacrifice in Arlington National Cemetery, the French
Cross Monument in the Cypress Hill National
Cemetery, the Unknown Soldiers Monument in
Prescott National Cemetery, and the Wall of Honor at
the Pennsylvania Military Museum. Buono v.
Kempthorne, 527 F.3d 758, 765 n. 6 (9th Cir. 2008)
(O’Scannlion, J., dissenting). The National Park
Service manages sites that contain “thousands of
privately designed or funded commemorative objects,
including the Statue of Liberty, the Marine Corps War
Memorial (the Iwo Jima monument), and the Vietnam
Veterans Memorial.” Pleasant Grove City v. Summum,
555 U.S. 460, 471 (2009). All branches of the Nation’s
service utilize the cross as a symbol to honor and
memorialize the sacrifice of America’s veterans. The
Navy Cross, the Distinguished Service Cross (Army),
the Air Force Cross, and the Distinguished Flying
Cross are examples of the pervasive use of the cross in

This Court should preserve the honor the Memorial
rightly accords to America’s veterans, rather than
affirming the Fourth Circuit’s strained application of
the Establishment Clause. This case is an opportunity
to craft an objective test, consistent with the nation’s
history and tradition, for passive public displays that
incorporate religious imagery with no coercion or
government intent to proselytize.

5

ARGUMENT

I. NO ONE HAS AN ABSOLUTE RIGHT TO
BE FREE OF OFFENSE IN GENERAL OR
RELIGION IN PARTICULAR.

Establishment Clause cases are often built on the
sensitivities of the “offended observer”—contrary to
basic principles of American freedom. No one can
escape offense. The Constitution “would betray its own
principles” if it “guaranteeld] citizens a right entirely
to avoid ideas with which they disagree.” Elk Grove v.
Newdow, 542 U.S. at 44 (O’Connor, J., concurring).
Exposure to unwelcome ideas is the price of preserving
American freedoms. Americans must “develop thicker
skin” in order “to preserve their civil liberties.” David
E. Bernstein, Defending the First Amendment From
Antidiscrimination, 82 N.C. L. Rev. 223, 245 (2003).

No one has an absolute right to be free from
exposure to religion. The Religion Clauses guarantee
the right to be free of government coercion but not the
right to avoid religion altogether. The First
Amendment itself endorses religion. Decades ago, this
Court found “no constitutional requirement which
makes it necessary for government to be hostile to
religion and to throw its weight against efforts to widen
the effective scope of religious influence.” Zorach v.
Clauson, 343 U.S. 306, 313-314 (1952). Religious
expression stands at “the core of the type of speech that
the First Amendment was designed to protect.” See
Capitol Square Review & Advisory Bd. v. Pinette, 515
U.S. 753, 760 (1995). The Framers would certainly
consider it a “bitter irony that the religious values they
designed those Clauses to protect have now become so
distasteful to this Court that if they constitute

6

anything more than a subordinate motive for
government action they will invalidate it.” McCreary
County v. ACLU, 545 U.S. 844, 902-903 (2005) (Scalia,
J., dissenting).

The irony is inescapable: Anything that smacks of
religion must acquire a secular component, or lose its
meaning through rote repetition, to survive the
Establishment Clause. Religious displays must be
buried among secular symbols (Van Orden v. Perry, 545
U.S. 677, 704 (2005); Lynch, 465 U.S. at 679-680).
Religious holidays must acquire a secular appeal.
Religious phrases—“In God We Trust” or “under God”
—must “los[e] through rote repetition any significant
religious content.” Lynch, 465 U.S. at 716-717
(Brennan, J., dissenting); Marsh v. Chambers, 463 U.S.
783, 818 (1983) (Brennan, J., dissenting) (suggesting
that these mottos are constitutional because “they have
lost any true religious significance”); County of
Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U.S. 573, 631 (1989)
(O’Connor, J., concurring) (longstanding practices such
as legislative prayer have “largely lost their religious
significance over time”). The Framers would hardly
recognize the Constitution they drafted. Under this
modern logic, phrases like “in God we trust” or “under
God” would have initially been unconstitutional
“because they had not yet been rendered meaningless
by repetitive use.” Sherman v. Community
Consolidated School District 21 of Wheeling Township,
980 F.2d 437, 448 (7th Cir. 1992) (Manion, J.,
concurring). Regardless of the merits of this
development, the Latin cross Aas acquired an
established secondary meaning—amilitary sacrifice—
and that is the meaning obviously intended and

7

conveyed by the Memorial. Yet the Fourth Circuit
found an Establishment Clause violation.

It is in this confused context that the “offended
observer” is granted standing to challenge a display
that “involves no coercion” and causes “no injury” other
than “offense at seeing the monument” while passing
by. Van Orden, 545 U.S. at 694 (Thomas, J.,
concurring). Respondents are persons who “faced
multiple instances of unwelcome contact with the
Cross.” Am. Humanist Ass’n v. Maryland-National
Capital Park & Planning Comm’n, 874 F.3d 195, 202
(4th Cir. 2017). Quoting itself, the Fourth Circuit found
that “unwelcome direct contact with a religious display
that appears to be endorsed by the state” is adequate
for standing. Suhre v. Haywood Cty., 131 F.3d 1083,
1086 (4th Cir. 1997). Unless religious artifacts are
hidden from public view, none are safe from the wrath
of the offended observer. See, e.g., ACLU v. Rabun Cty.
Chamber of Commerce, Inc., 698 F.2d 1098, 1108 (11th
Cir. 1983) (Latin cross was clearly visible from “the
porch of [plaintiff's] summer cabin” and the roadway he
used to reach it). The offended observer’s “injury” is fa:
removed from the “coercion of religious orthodoxy and
of financial support by force of law and threat of
penalty” that characterized historical establishments.
Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J.,
dissenting). Offense is not tantamount to coercion.

Under the endorsement test, an “offended
observer's” lawsuit is litigated through the lens of a
hypothetical “reasonable observer” whose perception
may be neither be accurate nor reasonable. This
observer is an imaginary construct “of indeterminate
religious affiliation” who supposedly “knows all the

8

facts and circumstances surrounding a challenged
display.” Van Orden, 545 U.S. at 696 (Thomas, J.,
concurring). Yet the description and level of knowledge
shift from case to case. It is not—or at least should not
be—“any person who could find an endorsement of
religion” or “some reasonable person” who might be
offended or “might think the State endorses religion.”
Am. Humanist Ass’n, 874 F.3d at 218 (Gregory, J.,
dissenting), quoting Pinette, 515 U.S. at 780 (O’Connor,
J., concurring) (internal quotation marks omitted). The
Fourth Circuit fashions an observer who “ignores
certain elements of the Memorial,” “reaches
unreasonable cenclusions,” and confuses high vay
maintenance witu forbidden religious entanglement.
Am. Humanist Ass’n, 874 F.3d at 218 (Gregory, J.,
dissenting). It is troubling that a constitutional
violation hinges on “an observer's potentially mistaken
belief that the government has violated the
Constitution, rather than on whether the government
has in fact done so.” Utah Highway Patrol Ass’n v. Am.
Atheists, Inc., 565 U.S. 994, 1004 n. 7 (2011) (Thomas,
J., dissenting from denial of certiorari). The legitimacy
of the government’s action easily turns on the
“misperception of an imaginary observer.” McCreary,
545 U.S. at 901 (2005) (Scalia, J., dissenting).

A reasonable observer of the Memorial should know
its context and history and that the Latin cross is
“often used to honor and respect those whose heroic
acts, noble contributions, and patient striving help
secure an honored place in history for this Nation and
its people.” Am. Humanist Ass’n, 874 F.3d at 218
(Gregory, J., dissenting), quoting Salazar v. Buono, 559
U.S. 700, 721 (2010). Yet the Fourth Circuit adopts a
rigid per se rule that would exclude all cross-shaped

9

displays, regardless of history, context, or established
meaning.

This Court has repeatedly rejected the proposition
that a “heckler’s veto” trumps all other observers. Elk
Grove v. Newdow, 542 U.S. at 35 (O'Connor, J.,
concurring). “There is always someone who, with a
particular quantum of knowledge, reasonably might
perceive a particular action as an endorsement of
religion.” Pinette, 515 U.S. at 780. The “offended
observer's” subjective injury easily morphs into the
“hecker’s veto” this Court has rejected. Where decades
have passed without objection, a belated complaint
suggests the presence of a “hecker’s veto.”

* The creche at issue in Lynch failed to generate
political friction or divisiveness in the 40-year
history of Pawtucket’s Christmas celebration.
Lynch, 465 U.S. at 684.

* The Ten Commandments monuments in Van
Orden and Pleasant Grove City stood without
challenge or controversy for 40 years before a
single objection was raised. Van Orden, 545 U.S.
at 702 (Breyer, J., concurring); Pleasant Grove
City, 555 U.S. at 483 (Scalia, J., concurring).

¢ The Sunrise Rock memorial in Buono had stood
for over seven decades. Salazar v. Buono, 559
U.S. at 716.

The Fourth Circuit essentially allows the “heckler’s
veto” of an imaginary observer to trump more than nine
decades of peaceful history surrounding the Memorial.

10

i. THEGOVERNMENT IS NOT ADVOCATING
A MESSAGE OF ITS OWN.

In 1961, the Commission took title to the memorial
monument and the land—not to advocate a government
message or endorse religion, but to ensure safety in the
middle of a busy traffic intersection. Am. Humanist
Ass’n, 874 F.3d at 201.

Even if there were a government message, and even
if that message implicated religion, the government
may acknowledge and accommodate religion. Examples
abound— military and prison chaplaincies, the national
motto and anthem, the Pledge, and various religious
proclamations. In some contexts, the government may
“speak” using a display with religious text or meaning
as part of a broader message—without violating the
Establishment Clause. Government museums, art
exhibits, libraries, and holiday displays all include
religious items without endorsing religious beliefs. The
benefit to any one faith or religion is too “indirect,
remote, or incidental” to be considered impermissible
endorsement or advancement. Lynch, 465 U.S. at 683.
Such “government speech” leaves Americans as free as
they were before.

The Establishment Clause “does not compel the
government to purge from the public sphere all that in
any way partakes of the religious.” Van Orden, 545
U.S. at 699 (Breyer, J., concurring). The Fourth Circuit
ruling violates this principle. It is time to reign in the
runaway Establishment Clause jurisprudence that
stifles religious expression and creates the very
hostility the Clause was intended to prevent. Removing
or mutilating the Memorial, merely because of its
outward similarity to a religious symbol, would be a

11

draconian solution dishonoring to the veterans it seeks
to honor and hostile to religion.

A. This case is not about a government
message.

“I]t is important to distinguish between
governmental authorization . . . and governmental
advocacy.” Emily Fitch, An Inconsistent Truth: The
Various Establishment Clause Tests As Applied in the
Context of Public Displays of (Allegedly) “Religious”
Symbols and Their Applicability Today, 34 N. Ill. U. L.
Rev. 431, 455 (2014). The Memorial is a passive display
that creates no obligation even to acknowledge it. The
Commission does not advocate or endorse a message by
preserving the Memorial and authorizing its continued
presence on public land. The monument does not
convey agovernment message—and the message it does
communicate is not religious, but rather
commemorative.

The distinction between government and private
speech may be helpful, because the First Amendment
protects private religious expression but restricts
government speech. Bd. of Ed. of Westside v. Mergens,
496 U.S. 226, 250 (1990); Santa Fe, 530 U.S. at 302. In
Van Orden, the Establishment Clause challenge was
rejected even though “all the Justices agreed that
government speech was at issue.” Pleasant Grove City,
555 U.S. at 483 (Scalia, J., concurring). That case did
not require “a finding that the monument was only
‘private’ speech.” Id. Instead, the plurality identified
both historical meaning and religious significance.
Similarly, the Latin cross is a Christian symbol that

has acquired a secondary meaning as a war memorial.
This Court need not find the Memorial’s message

12

“private” in order to find it constitutional, nor does its
shape mandate invalidation as “government” speech
endorsing religion.

This Court’s decision in Pleasant Grove City, which
hinged on the distinction between government and
private speech, was litigated “in the shadow” of the
Establishment Clause. Pleasant Grove City, 555 U.S. at
482 (Scalia, J., concurring); see id. at 486 (Souter, J.,
concurring) (“litigated . . . with one eye on the
Establishment Clause”). Although the Establishment
Clause was not expressly at issue, it lurked beneath
the surface and sparked comments from several
concurring Justices. Pleasant Grove City warrants brief
discussion to consider how monuments convey meaning
and to clarify that it does not mandate a per se rule
that would invalidate a// monuments on government
land with religious imagery (Sections IIB and III,
infra).

B. A monument on public land does not
necessarily represent the government’s
own message.

Monuments and other displays do not convey
meaning in the same way as the written or spoken
word. Interpretation can lead to unpredictable results,
especially in cases of religious symbolism. Under
existing precedent, a creche, a menorah, a Ten
Commandments display, or a cross on public property
“violates the Establishment Clause, except when it
does not.” Utah Highway Patrol, 565 U.S. at 1001,
1002, 1003 (Thomas dissenting from denial of
certiorari).

13

Monuments on government land are generally
presumed to be government speech, including those
commissioned and financed by the government, or
received as a donation and displayed to the public.
Pleasant Grove City, 555 U.S. at 470-471. But in
certain contexts—‘“|sjectarian identifications on
markers in Arlington Cemetery come to mind”—there
is a common understanding that a display with
religious symbolism does not represent the
government’s chosen view. Jd. at 487 (Souter, J.,
concurring). “And to recognize that is to forgo any
categorical rule at this point.” Jd. The Fourth Circuit
disregards the ubiquity of the Latin cross as a time-
honored war memorial symbol.

No one denies the place of the cross in the Christian
religion. But a monument may convey more than one
message, and the message perceived—by a government
donee or a “reasonable observer”—may not coincide
with the one intended by the sculptor or donor. The
Ten Commandments monument in Van Orden “hald!
a dual significance, partaking of both religion and
government.” Van Orden, 545 U.S. at 692. This mixed-
message phenomenon is particularly pronounced where
the monument contains no text. Pleasant Grove City.
555 U.S. at 475. Even when a monument “features the
written word” it may “be interpreted by different
observers in a variety of ways.” Jd. at 474. It may not
be possible to identify any single message a structure
conveys; the creator’s intent may be quite different
from the understanding of a government entity that
later takes title. Jd. at 476. The message “may also be
altered by the subsequent addition of other monuments
in the same vicinity” or the meaning may simply
change over time. Jd. at 477.

14

A striking illustration of mixed messages is this
Court’s opinion in Pinette, 515 U.S. 753. The state
could not exclude a Klu Klux Klan cross a from holiday
display on Establishment Clause grounds. In his
concurring opinion, Justice Thomas highlights the
chasm between the Christian use of the cross and the
way the KKK “appropriated one of the most sacred of
religious symbols as a symbol of hate.” Jd. at 770-771
(Thomas, J., concurring). See Separation of Church &
State Comm. v. City of Eugene, 93 F.3d 617, 626-627
(9th Cir. 1996) (O’Scannlain, J., concurring)
(“ironically” the will of voters who approved a cross for
“a benign purpose” is overruled, while the KKK
received constitutional protection for its “message of
hate”). The KKK hijacked one of Christianity’s primary
symbols for hateful purposes. In contrast, military
culture has appropriated the cross for honorable use as
a universal symbol of sacrifice. When properly viewed
in context, the military cross is no more an
endorsement of religion than the KKK’s cross.

Speech classification was the central issue in
Pleasant Grove City. Was the donated monument the
government’s own expression, or the donor’s private
speech? Pleasant Grove City, 555 U.S. at 467. The
public-private speech distinction is not at issue here,
but it is a helpful to understanding that when the
government accepts a donated monument, it does not
necessarily endorse the intended message of the donor
or creator. Jd. at 476-477. Officials in Pleasant Grove
City incorporated the donated Ten Commandments
monument into a message about the city’s history.
Similarly, the Memorial now stands in Veterans
Memorial Park and contributes to its commemorative
message along with other monuments. Moreover, it

15

was neither commissioned nor financed by the
government, and the Commission took title for
purposes of traffic safety—-not to communicate a

government message.

C. The government may acknowledge the
nation’s religious heritage—including
Christianity.

This case is not about a religious message. But even
if it were, federal and state governments may
acknowledge the religious beliefs and history of the
American people. Lynch, 465 U.S. at 674 (“unbroken
history of official acknowledgment by all three
branches of government of the role of religion in
American life from at least 1789”); School Dist. of
Abington Township v. Schempp, 374 U.S. 203, 212-213
(1963) (“the Founding Fathers believed devotedly that
there was a God and that the unalienable rights of man
were rooted in Him”); Engel v. Vitale, 370 U.S. 421, 434
(1962) (“The history of man is inseparable from the
history of religion.”); Zorach v. Clauson, 343 U.S. at
313 (“We are a religious people whose institutions
presuppose a Supreme Being.”). The Establishment
Clause does not mandate “eradication of all religious
symbols in the public realm” nor does it “oblige
government to avoid any public acknowledgment of
religion’s role in society.” Salazar v. Buono, 559 U.S. at
718-719.

The Fourth Circuit admits that the “semi-secular
history” of the Memorial “does not clearly support one
party over the other.” Am. Humanist Ass’n, 874 F.3d at
208. Nevertheless, the outcome hinges on _ its
observation that the Latin cross is exclusively a
Christian symbol, unlike the Ten Commandments or

16

the more generic motto “In God We Trust.” Jd. at 207-
208. Indeed, it might “be deemed offensive to
Christians” to hold otherwise. Jd. at 207 n. 9. The court
also noted “the American Legion’s affiliation with
Christianity.” Jd. at 209. But as the dissent points out,
the majority ruling inevitably “would lead to per se
findings that all large crosses are unconstitutional
despite any amount of secular history and context.” /d.
at 219 (Gregory, J., dissenting).

In addition to its “secular history and context,” the
cross could be viewed as a permissible acknowledgment
of religion. Government acknowledgment may
encompass the reality that this nation has deep roots
in Christianity. America was long regarded “a
Christian nation.” Church of Holy Trinity v. United
States, 143 U.S. 457, 471 (1892). “Thie] first
congressional prayer was emphatically Christian.”
Town of Greece v. Galloway, 134 S. Ct. 1811, 1833
(Alito, J., concurring). This Court once recognized
Christianity “ as a part of the common law of England”
and “a part of the public law of Pennsylvania.” Vidal v.
Phila., 43 U.S. 127, 183 (1844). Governments may
acknowledge the facts of history without compelling
anyone to affirm or support Christian doctrine.

The legal battles surrounding legislative invocations
reflect the Christian roots of America and support the
constitutionality of acknowledging those roots. In
Marsh v. Chambers, the chaplain who served the
Nebraska legislature for sixteen years was a
Presbyterian pastor. Even the dissent “recognized that
government cannot, without adopting a decidedly anti-
religious point of view, be forbidden to recognize the
religious beliefs and practices of the American people

17

as an aspect of our history and culture.” Marsh v.
Chambers, 463 U.S. at 810-811 (Stevens, J.,
dissenting). More recently, the Town of Greece was
sued due to allegations that a reasonable observer
would perceive a preference for Christian prayers.
Town of Greece, 134 S. Ct. at 1817-1818. This Court
found legislative prayer to be a “tolerable
acknowledgement of beliefs widely held.” Jd. at 1818,
quoting Marsh, 463 U.S. at 792. The same is true here.

Another example of tolerable acknowledgment is
the Ground Zero cross discovered in the World Trade
Center debris, now displayed at the National
September 11 Memorial and Museum to tell the story
of its use by “liJndividuals of many faiths and belief
systems .. . as a symbol of hope, faith, and healing.”
Am. Atheists, Inc. v. Port Auth., 760 F.3d 227, 240 (2d
Cir. 2014). In context, the cross was found to be
“plainly historical rather than theological.” Jd. The
government’s selection of artifacts to display was
admittedly “a form of government speech.” Jd. at 246.
But as in this case, the government acknowledged an
item that originated with the expression and beliefs of
its citizens. The Memorial acknowledges the deep
religious convictions—and the respect shown to fallen
soldiers—that have characterized America since its
founding. And the key words attached to the
monument—‘valor,” “endurance,” “courage,” and
“devotion”—are hardly unique to any one religious
tradition.

18

D. The government may accommodate
religion.

This case might also be viewed through the lens of
accommodation. The Commission’s preservation of
traffic safety at the Memorial’s location is not the sort
of activity “motivated wholly by _ religious
considerations” that this Court should invalidate.
Lynch, 465 U.S. at 680. On the contrary, there is no
religious motivation. Even so, the Commission's
involvement with the monument, accommodating a
longstanding memorial message, parallels government
accommodation for religious expression.

In a long line of unbroken authority, this Court
affirms that the Constitution “mandates
accommodation” and “forbids hostility” toward religion.
Lynch, 465 U.S. at 673. In spite of other distinctions
and nuances, landmark Establishment Clauses cases
over the past sixty years are consistent on this point:
Salazar, 559 U.S. at 719 (“The Constitution . . . leaves
room te accommodate divergent values within a
constitutionally permissible framework.”); Elk Grove v.
Newdow, 542 U.S. at 35-36 (eradicating references to
religious heritage would sever ties to a history that
sustains this Nation even today); Walz v. Tax
Commission, 397 U.S. 664, 669 (1970) (highlighting
“benevolent neutrality” with neither “sponsorship” nor
“interference”); Zorach v. Clauson, 343 U.S. at 312-313
(rigid approach would be “hostile, suspicious, and even
unfriendly”); McCollum v. Board of Education, 333 U.S.
203, 256 (1948) (rejecting “rigid interpretation”).

In Salazar v. Buono, Congress faced a dilemma with
similarities to this case. Faced with an injunction
requiring the removal of the Sunrise Rock cross, the

19

government could not lawfully maintain it—‘“but it
could not remove the cross without conveying
disrespect for those the cross was seen as honoring.”
Salazar v. Buono, 559 U.S. at 716. Congress passed a
land-transfer statute “true to the spirit of practical
accommodation that has made the United States a
Nation of unparalleled pluralism and religious
tolerance.” Jd. at 724 (Alito, J., concurring). Demolition
of the monument would have likely been perceived as
government hostility toward the nation’s religious
heritage, rather than the neutrality the Constitution
demands. /d. at 726. Here, mutilation or demolition of
the Memorial would convey extreme disrespect for the
veterans it was erected to honor. There was no
Establishment Clause issue when it stood on private
land, supported by private funds. When the
Commission took title in the interests of traffic safety,
that action accommodated a commemorative message
that had been part of the Bladensburg community for
four decades.

Many Establishment Clause challenges could be
averted “if the Court would return to the views of the
Framers and adopt coercion as the touchstone for our
Establishment Clause inquiry.” Van Orden, 545 U.S. at
697 (Thomas, J., concurring). The Memorial does not
coerce anyone to affirm a religious doctrine or engage
in a religious exercise—and its clear purpose is
unrelated to religion. Removing it would constitute the
very hostility the Constitution prohibits.

Moreover, the government may provide general
public benefits to the entire community. It is “obviously
not the purpose of the First Amendment” to cut off
religious activities from general public services—such

20

as public streets and sidewalks—unrelated to religious
function. Everson v. Board of Education of Ewing, 330
U. S. 1, 18 (1947); Trinity Lutheran Church of
Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2027 (2017)
(Breyer, J., concurring) (finding “no significant
difference” between Everson and Trinity Lutheran).
Nor does such action even remotely constitute the
forbidden “entanglement” of Lemon v. Kurzman, 403
U.S. 602 (1974). This case, like Trinity Lutheran,
involves expenditures for public safety, not religious
advocacy. In Trinity Lutheran, it was playground
safety, and in this case, traffic safety at a busy
intersection. The government “merely maintain|s] a
monument within a state park and a median in
between intersecting highways that must be well lit for
public safety reasons.” Am. Humanist Ass’n, 874 F.3d
at 222 (Gregory, C. J., dissenting). Even if the
Memorial did convey a religious message, the
government could provide traffic safety in the
surrounding area.

iit. THE GOVERNMENT PRESERVES AND
RESPECTS A COMMEMORATIVE
MESSAGE CREATED BY PRIVATE
CITIZENS.

The Memorial was originally constructed by private
organizers—families of the fallen soldiers, later joined
by the American Legion—using private funds, on
private land, to convey the organizers’ commemorative
message. The Commission preserved that message 40
years later by taking title in order to provide for traffic
safety in the area.

Any reasonable observer with even a cursory
knowledge of the Memorial’s 90-year history would

21

understand that “while the monument sits on public
land, it did not sprout from the minds of |government|
officials and was not funded from [government|
coffers.” Card v. City of Everett, 520 F.3d 1009, 1020
(9th Cir. 2008). The message “sprouted” from the minds
of the mothers who wanted to honor the 49 men who
had sacrificed their lives in the recent war. The
Memorial’s placement was “part of the concurrent
creation of the National Defense Highway to
commemorate the soldiers of World War I, not as a
means of endorsing religion.” Am. Humanist Ass’n, 874
F.3d at 219 (Gregory, J., dissenting). Its history dates
back an entire century. It was in 1918 that private
citizens began to raise money for its construction.
Several years later, in 1922, they ran short of funds
and the American Legion—a private organization—
assumed responsibility. Am. Humanist Ass’n, 874 F.3d
at 200. Over the years, events have been hosted to
celebrate Memorial Day, Veterans Day, the Fourth of
July, and September 11” remembrances. Religious
services were only held (if at all) three times in 1931.
Id. at 217 (Gregory, C. J., dissenting). At that
time—thirty years before the Commission became
involved—the Memorial was still located on private
land.

The origins of the Memorial are reminiscent of
Sunrise Rock in Salazar v. Buono where, “lijn 1934,
private citizens placed a Latin cross on a rock
outcropping in a remote section of the Mojave Desert.”
Salazar v. Buono, 559 U.S. at 705-706. Their purpose,
“to honor American soldiers who fell in World War I”
(id. at 706), is virtually identical to that of the
Memorial’s organizers. As in Bladensburg, “the cross
was not placed on Sunrise Rock to promote a Christian

22

message” or “to set the imprimatur of the state on a
particular creed” but “simply to honor our Nation’s
fallen soldiers.” Jd. at 715.

The Tenth Circuit faced a challenge similar to this
case in Am. Atheists, Inc. v. Duncan, 637 F.3d 1095
(10th Cir. 2010). The Utah Highway Patrol Association
(“UHPA”), a private nonprofit organization, initiated a
plan to honor fallen troopers with 12-foot high
memorial crosses. Jd. at 1111. Crosses were initially
placed on private land, with the consent of each fallen
officer’s family. Later, UHPA obtained consent from the
state to place some of them on public property where
motorists would be reminded of the troopers’ sacrifices.
Id. at 1112. The memorial crosses are privately funded,
owned, and maintained by UHPA. /d. Nevertheless, the
court concluded they were a government endorsement
of Christianity, rejecting the possibility they could be
“UHPA’s private speech, not the expression of the state
of Utah.” Jd. at 1114. This conclusion was supposedly
mandated by Pleasant Grove City (id.)—but that case,
unlike either Duncan or the case before this Court,
involved a Free Speech claim. In Pleasant Grove City
this Court did not establish a rigid, per se rule that
every monument standing on public property is always
government speech. On the contrary, after a lengthy
discussion about how monuments convey meaning, this
Court observed that the government “does not
necessarily endorse the specific meaning that any
particular donor sees.” Pleasant Grove City, 555 U.S. at
476-477. While this Court did not speak directly to the
Establishment Clause challenge lurking in the
background, there were hints that the Ten
Commandments monument could have survived such
a challenge, as in Van Orden. Id. at 482 (Scalia, J.,

23

concurring) (“The city ought not fear that today’s
victory has propelled it from the Free Speech Clause
frying pan into the Establishment Clause fire.”).

In a nation governed by representatives of the
people, it is unsurprising that the government would
acknowledge, respect, and accommodate the sentiments
of the people. Government actions and speech often
intersect the beliefs of private citizens. Here, the
Commission has shown respect for the private
organizers and those they sought to honor. The
Bladensburg WWI Memorial is not a government
creation and does not “speak” for any government
entity. Contextual and historical elements support the
monument’s commemorative message. The monument
was designed by private citizens, not to convey a
religious message but to stand as a tribute to the men
who died to preserve American liberty—including
religious liberty. Lronically, this includes the liberty of
the American Humanist Association members and
other like-minded citizens to reject religion.

IV. THIS COURT SHOULD CRAFT A TEST TO
BRING CLARITY TO CASES INVOLVING
RELIGIOUS SYMBOLISM ON PUBLIC
PROPERTY.

Many monuments stand in national public parks
across the nation. Often these were privately financed
and/or donated by private parties. Pleasant Grove City,
555 U.S. at 471. These monuments, including many
honoring war heroes, are part of American history and
tradition. Other passive displays, some permanent and
others temporary, appear at various times and places.
Holiday and historical themes are common, sometimes
in or near government buildings. Cases have been

24

litigated in this Court over many decades, with little
clarity or consistency. This case offers an opportunity
to illuminate this Court’s Establishment Clause
jurisprudence, particularly with respect to passive
displays incorporating religious symbolism.

A good test should be objective. It should focus on
whether a government action actually violates the
Establishment Clause, judged in light of American
history and tradition, rather than the subjective
complaints of the “offended observer” or the perception
of the ill-defined “reasonable observer” passing by. The
“reasonable observer” of recent cases is “increasingly
hostile to religious symbols in the public sphere.”
Duncan, 637 F.3d at 1101 (Kelly, J., dissenting from
denial of rehearing en banc). This malleable imaginary
person may be “biased, replete with foibles, and prone
to mistake” and thus easily manipulated to reach
desired results. Jd. at 1108 (Gorsuch, J., dissenting
from denial of rehearing en banc). The combination of
“offended” and “reasonable” observers is lethal, leading
to blatant hostility to all things religious in the public
square—a result never contemplated by the
Constitution’s Framers. In cases like Duncan, courts
dare to presume unconstitutionality based on what a
poorly defined observer might mistakenly think. /d.
That approach should be jettisoned and replaced with
a return to coercion as “the touchstone” of the inquiry.
Van Orden, 545 U.S. at 697 (Thomas, J., concurring).

CONCLUSION

This Court should reverse the decision of the Fourth
Circuit and hold that the Bladensburg WWI Memorial
is constitutional.

25
Respectfully submitted,

James L. Hirsen

Counsel of Record
505 S. Villa Real Drive, Suite 208
Anaheim Hills, CA 92807
(714) 283-8880
james@jameshirsen.com
Deborah J. Dewart
620 E. Sabiston Drive
Swansboro, NC 28584-9674
(910) 326-4554
debcpalaw@earthlink net

Counsel for Amicus Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0835%3A50. Public record. Not legal advice.