# Amicus Curiae 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%3A55 ## 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 MARYLAND- NATIONAL CAPITAL PARK AND PLANNING COMMISSION, Petitioner, V. AMERICAN HUMANIST ASSOCIATION, ET AL., Respondents. THE AMERICAN LEGION, ET AL., Petitioners, V. AMERICAN HUMANIST ASSOCIATION, ET AL., Respondents. ON WRIT OF CERTIORARI TO THE U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF OF MEDAL OF HONOR RECIPIENTS AS AMICT CURIAE IN SUPPORT OF PETITIONERS BRIAN H. PANDYA Counsel of Record WILEY REIN LLP MEGAN L. BROWN 1776 K Street NW A. LOUISA BROOKS Washington, DC 20006 WESLEY E. WEEKS (202) 719-7000 BETHANY A. CORBIN BPandya@wileyrein.com KRYSTAL B. SWENDSBOE a. : Taras, Samar Counsel for Amici Curiae JEREMY J. BROGGI December 21, 2018 eee TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................:ccccccsesessssseeees ill INTEREST OF AMICI CURIAE......0............:cccceeeeees 1 1. Chief Warrant Officer Hershel Woodrow ae EIN AGNES Si SNe Ses em EC 4 2. Lieutenant Colonel Charles S. Kettles 6 3. Hospital Corpsman Third Class Robert ELE I Sea ee a Oe 9 4. Sergeant Allen James Lynch ............. 11 INTRODUCTION AND SUMMARY OF THE TET aibidcelenichcelcidscheumatuatiniiiaseiiateiniiapeisennineteneis 14 ITI cieicehicininbsadtiopadiniaeaipiahamemstibcnint eigen aie 16 I. The Fourth Circuit's Decision, Unless Reversed, Endangers Veterans Memorials Around the REE E ais Oe ENU mS Fe Nev We Die IOS Pn 16 A. The Fourth Circuit’s Decision Conflicts 6S EEE Aaa 16 B. Holding that the Peace Cross Is Anything Other Than a War Memorial Is an Affront to Veterans and Endangers Other Monuments............. 18 7 il e TABLE OF CONTENTS Page il. The Bladensburg Peace Cross Is Consistent with the Nation’s Long History and Tradition of Honoring Veterans ......................ces0000e - 24- A. The Peace Cross’s History Should Have Raised the Bar for Establishment CRenD GD ccccccnsecsierecinbusteseinel 24 B. The Peace Cross Is a Secular Display, Consistent with Other Military Memorials and Honors that Use Cross RPTIIIGI, - 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.” Salazar v. Buono, 559 U.S. 700, 721 (2010); see also Mount Soledad Mem’ Ass’n v. Trunk, 567 U.S. 944, 944-45 (2012) (Alito, J., respecting the denial of certiorari); Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 565 U.S. 994, 1007-08 (2011) (Thomas, J., dissenting from denial of certiorari); cf Van Orden v. Perry, 545 U.S. 677, 689-90, 692 (2005) (recognizing the dual religious and historical significance of a Ten Commandments memorial). The Fourth Circuit's decision here conflicts with this recognition. The Medal of Honor recipients urge the Court here to reaffirm the law and common sense. Because displays incorporating religious symbols can carry multiple meanings, courts should avoid finding “an Establishment Clause violation . . . any time a person experiences a sense of affront.” Town of Greece, 572 U.S. at 589. Yet that is precisely what the Fourth Circuit did here, yielding to the demands of three residents who claim to “have faced multiple instances of unwelcome contact with the Cross” “while driving in the area,” leaving them “offended.” App. 7a. The Fourth Circuit’s approach strays from the underpinnings of the Establishment Clause. The Establishment Clause has historically served to prevent coerced religious adherence, not to save passersby from seeing a display they find disagreeable. “Offense . . . does not equate to coercion.” Town of Greece, 572 U.S. at 589. -18- The mere existence of religious imagery, particularly in the context of an otherwise secular memorial, is not coercion. To forbid religious imagery in all secular displays and memorials is itself coercive and an affront. “Government may not mandate a civic religion that stifles any but the most generic reference to the sacred.” /d. at 581. Yet that again is what the Fourth Circuit did here, finding that “[wlhile the Latin cross may generally serve as a symbol of death and memorialization, it only holds value . . . because of its affiliation with the crucifixion of Jesus Christ.” App. 18a. B. Holding that the Peace Cross Is Anything Other Than a War Memorial Is an Affront to Veterans and Endangers Other Monuments Other veterans memorials will be endangered if the Fourth Circuit’s decision is not reversed. Memorials that display a cross—such as the Argonne Cross at Arlington National Cemetery commemorating the American soldiers who died in France during World War I (pictured below), the Irish Brigade Monument at Gettysburg National Military Park, the Vietnam War Memorial at La Mesa, California, or the memorial in Taos, New Mexico . mmemorating servicemen who endured the Bataan Death March—will be subject to suit, removal, or defacement under the logic of the Fourth Circuit's decision. -19 Picture of the Argonne Cross Although the panel majority “notels] that [its] opinion does not presuppose any particular result (i.e., removing the arms or razing the Cross entirely),” App. 29a n.19, its logic ordains such a result, which is exactly what Respondents seek: “removal or demolition of the Cross, or removal of the arms from the Cross to form a non-religious slab or obelisk.” App. 8a n.7. (internal quotation marks and citation omitted). - 20 - Other similarly-situated memorials across the nation important to veterans will also be at risk if the decision below is not reversed. For, example, the Joan of Are memorial in Portland, Oregon, was dedicated on Memorial Day in 1925 in honor of the Doughboys of World War I and is administered by the City of Portland. See Smithsonian Art Inventories Catalog, Joan of Arc, Maiden of Orleans, (sculpture), available at https*//siris- NS bart tories&uri=full=3100001~!16997~! O#focus (last visited Dec. 18, 2018). Under the Fourth Circuit's logic, this veterans memorial could be seen as an endorsement of the Roman Catholic faith because Joan of Arc is a revered Catholic saint. 21 The World Trade Center Cross, which became a “symbol of hope and healing” after 9/11 may also be subject to future litigation. Am. Atheists, Inc. v. Port Auth., 760 F.3d 227, 233-35 (2d Cir. 2014). Although not a veterans memorial, the monument honors first responders (and innocent civilians) who lost their lives on September 11, 2011. Additionally, more than 20 veterans have been awarded the Medal of Honor during the Global War on Terror launched in response to the 9/11 attacks. See Natl Medal of Honor Museum, War on Terror Medal of Honor Recipients (Sept. 11, 2018), http://mohmuseum.org/war-on terror-medal!-of-honor-recipients/ (last visited Dec. 18. 2018) Picture of World Trade Center Cross Other memorials also use secular symbols that could be mistaken for religious symbolism. See, e.g, Fort Moultrie (Fort Sumter National Monument) Quarter, US. Mint, https-//www.usmint.gov/coins/coin- medal- programs/america-the-beautiful-quarters/fort- moultrie (last visited Dec. 18, 2018) (memorial quarter including crescent, which is associated with Islam). Picture of Fort Moultrie Quarter The Fourth Circuit's decision weaponizes the Establishment Clause to tear down United States history. The Establishment Clause does not intend that. Leaving the Fourth Circuit's decision intact sends a chilling message of disrespect to veterans: “removal would [be| viewed by many as a sign of disrespect for the brave soldiers whom the cross was meant to honor.” Buono, 559 U.S. 726 (Alito, J., concurring). The Medal of Honor recipients have long promoted memorials and monuments because they - 24 - provide the public with spaces to remember and honor the heroism and sacrifices of veterans. Memorials are not stone statues but places where the stories of veterans live on for posterity. Veterans memorials play a crucial role in protecting and celebrating these stories by symbolizing and preserving this history. Contrary to the Fourth Circuit’s findings, that secular message is the primary message sent by veterans memorials. ll. The Bladensburg Peace Cross Is Consistent with the Nation’s Long History and Tradition of Honoring Veterans A. The Peace Cross’s History Should Have Raised the Bar for Establishment Clause Challenges The Fourth Circuit's wooden analysis conflicts with the requirement “that the Establishment Clause must be interpreted by reference to historical practices and understandings.” Town of Greece, 572 U.S. at 576 (internal quotation marks and citation omitted). Instead of giving deference to the history and longstanding role the Bladensburg Peace Cross plays in the local community, the panel majority used those factors to find an Establishment Clause violation. That approach is backwards and emphasizes why the Fourth Circuit should be reversed. The Peace Cross’s rich history and tradition should have insulated the monument from this type ~ 25 - of challenge, which comes 93 years after its dedication in 1925. The panel majority observed (with apparent dismay) that “/o/ver the years, memorial services [have] continued to occur on a regular basis at the Cross.” App. 5a (emphasis added). The opinion also noted that adjacent to the Peace Cross is a plaque stating that the “crossroads Aas become a place for communities to commemorate their residents in service and in death.” App. 6a-7a (emphasis added) (internal quotation marks and citation omitted). And the Peace Cross “has primarily hosted veteran- focused ceremonies.” App. 20a. Instead of recognizing this context, the Fourth Circuit ignored the Peace Cross’s 93-year history and even suggested this history implied longstanding harms to be remedied: “It is also true that the Cross has stood unchallenged for lover] 90 years... . Perhaps the longer a violation persists, the greater the affront to those offended. The Cross’s history therefore does not definitively aid either side in the analysis.” App. 20a-21la. That is not this Court's standard. Instead, this Court has explained that a long historical practice weighs against finding an Establishment Clause violation. For example, in Van Orden v. Perry, this Court found that the extensive history of the Ten Commandments in the United States supported the constitutionality of the monument at issue, which had been in place for 40 years before Van Orden filed suit. 545 U.S. at 682, - 96 - 688-90; see also Buono, 559 U.S. at 716 (finding that due to its 70-year history, “the cross and the cause it commemorated had become entwined in the public consciousness”). Similarly, in Town of Greece v. Galloway, this Court emphasized the long history of legislative prayer, which had been practiced by Congress since the framing of the Constitution, in upholding Greece's prayer practice, explicitly rejecting any legal test “that would sweep away what has so long been settled.” 572 U.S. at 575-76. The Fourth Circuit, therefore, should have viewed the Peace Cross’s 93-year history as a factor in its favor. B. The Peace Cross Is a Secular Display, Consistent with Other Military Memorials and Honors that Use Cross Symbols. The Fourth Circuit's conclusion that “the sectarian elements lof the Peace Cross] easily overwhelm the secular ones,” App. 22a, ignores the prominent role religious symbols have historically played in military memorials and honors. Those symbols are not present to endorse one religion but as signs of solemnity and respect. When used in the military context, these symbols are overwhelmingly secular. From 1919 until 1942, e., the period in which the Bladensburg Peace Cross was constructed and then stood for almost two decades after, one of the 2i- Medals of Honor awarded for certain acts of heroism in naval services was in the shape of a cross: See Types of MoH, Congressional Medal of Honor Society, http://www.cmohs.org/medal-types.php (last visited Dec. 18, 2018). The Distinguished Service Cross, the second- highest award for valor bestowed on a solider, was established by President Wilson in 1918. To this day, the award is a “|blronze cross suspended from a red, white, and blue ribbon. An eagle rests in the center of the cross. Below the eagle, a scroll bears the inscription ‘FOR VALOR.” 238 See National Museum of American History, Distinguished Service Cross Medal, http://americanhistory.si.edu/collections/search/objec t/nmah 447533 (ast visited Dec. 18, 2018). The Navy's second-highest honor is the Navy (ross - 26 - Military Awards for Valor op 3 Description of Medals, U.S. Dep't Defense, https://valor.defense.gov/description-of-awards/ (last visited Dec. 18, 2018). Likewise, the Air Force awards the Distinguished Flying Cross: /d. Barry L. Spink, Distinguished Flying Cross and Air Medal Criteria in the Army Air Forces in World War IT, Air Force Historical Research Agency (Mar. 4, 2010), http://www.afhra.af.mil/Portals/16/documents/Timeli (last visited Dec. 18, 2018); Distinguished Flying Cross, Air Force’s Personnel Center (Aug. 4, 2010), http://www.afpe.af.mil/About/Fact- Sheets/Display/Article/421931/distinguished-flying cross/ (last visited Dec. 18, 2018). -~30- Crosses are not the only religious symbols that appear in military honors. For example, the five- pointed star used in the Bronze Star and Silver Star utilizes a shape that is also a symbol of the Wiccan faith. See generally McFaul v. Valenzuela, 684 F.3d 564, 569-70 (5th Cir. 2012) (discussing the use of a pentagram in connection with the Wiccan religion); McAlister v. Livingston, 348 F. App’x 923, 926-27 (5th Cir. 2009); Gelford v. Frank, 310 F. App’x 887, 888 (7th Cir. 2008). Known as a pentagram, the five- pointed star is akin to the use of a cross by Christians, and some have claimed that the pentagram also represents the five wounds of Jesus in Christianity. The Surprising Story Behind the Pentagram, Universal Life Church (Oct. 10, 2017), http://www.universallifechurch.org/2017/10/10/the- surprising-story-behind-the-pentagram/ (last visited Dec. 18, 2018). Similarly, a red cross on a white background (ie. the international symbol of the Red Cross) has historically been used as the symbol for medical services during wartime. See International Committee of Red Cross, The ne of the Runbtoms, (last visited Dec. 18, 2018). The Fourth Circuit’s conclusion “that the historical meaning and physical setting of the [Peace Cross] overshadows its secular elements” thus ignores the role religious symbols have long played in military honors. App. 24a. It is an ahistorical approach that - 31 - invites all manner of frivolous Establishment Clause challenges to military memorials and regalia. Viewed through the lens of history, the Peace Cross should have been recognized for what it is—a veterans memorial—and accordingly found to be a secular display. CONCLUSION For the reasons set forth above, and in the briefs of the American Legion and Maryland-National Capital Park and Planning Commission, the judgment of the Fourth Circuit should be reversed. Respectfully submitted, BRIAN H. PANDYA Counsel of Record MEGAN L. BROWN A. LOUISA BROOKS WESLEY E. WEEKS BETHANY A. CORBIN KRYSTAL B. SWENDSBOE TATIANA SAINATI JEREMY J. BROGGI WILEY REIN LLP 1776 K Street, N.W. Washington, DC 20006 (202) 719-7000 BPandya@wileyrein.com December 21, 2018 Counsel for Medal of Honor Recipients --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0835%3A55. Public record. Not legal advice.