Amicus Curiae Brief — Md.-Nat'l Capital Park & Planning Comm'n v. Am. Humanist Ass'n, 139 S. Ct. 451 (2018) (No. 18-18)

No. 18-18

pT ______ Hi _______

In the Supreme Court of the Anited States

Maryland-National Capital Park and

Planning Commission,

Petitioner,

v.

American Humanist Association, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURIAE OF PRINCE

GEORGE’S COUNTY, MARYLAND IN

SUPPORT OF PETITIONER

* Milton E. Mclver

*Counsel of Record

Jared M. McCarthy

County Attorney

Andrew J. Murray

Russell A. King, Jr.

Prince George’s County

Office of Law

1301 McCormick Drive

Suite 4100

Largo, MD 20774

Telephone: 301-952-5888

Facsimile: 301-952-3071

MEMciver@co.pg.md.us

Counsel for Amicus Curiae

Prince George’s County

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TABLE OF CONTENTS

TABLE OF AUTHORITIES. ............--sesecesseeseeseceeeeee i

IDENTITY AND INTEREST OF

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SUMMARY OF ARGUMENT. ..............cccccc0sseseeesesees 1

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TABLE OF AUTHORITIES

Cases

Am Humanist Ass’n v. Maryland-National Capital

Park & Planning, Comm’n,

874 F.3d 195, 209 (4th Cir. 2017)...............................

Edwards v. Aguillard,

482 U.S. 578, 586-587, 96 L. Ed. 2d 510,

Sr Os aaa liciactaetitlenemineenndsinkitnntioneis

Lynch v. Donnelly, 465 U.S. 668, 680,

79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984)....................

Salazar v. Buono,

559 U.S. 700, 718-19 (2010) (plurality opinion).........

Van Orden v. Perry,

RR RRS Pe Ar

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IDENTITY AND INTEREST OF AMICUS

CURIAE'

Prince George’s County, Maryland is the County

in Maryland wherein the subject of this litigation,

the “Peace Cross”, is situated. Prince George's

County was founded in 1696 and as such its citizens

have served in every United States war, foreign and

domestic. Because many of its citizens, both past and

present, are veterans, and because the cross has

stood as a landmark in the County for more than one

quarter of its history and solely as a World War |

memorial, Prince George’s County has an interest in

the preservation of the Peace Cross at its current

location.

SUMMARY OF ARGUMENT

The County disagrees with the Fourth Circuit's

opinion that the Commission’s display and

maintenance of the Peace Cross violates the

Establishment Clause. In finding that the Peace

' Pursuant to Sup. Ct. R. 37.6, amicus curiae and its counsel state that

none of the parties to this case nor their counsel authored this brief in

whole or in part, and that no person or entity made a monctary

contribution for the preparation or submission of this brief. Because

Prince George’s County is a “county” within the meaning of Rule 37.4

this brief is being submitted without notice to, or with the permission of,

the appellees.

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Cross’s sectarian elements outweigh the secular

elements, the Fourth Circuit placed excessive weight

on the Peace Cross’s association with Christianity

and “immense _ size” while understating the

overwhelming evidence of its 93-year history as a

war memorial in the County. The cross was erected

as understood to be a symbol of peace and a

memorial to fallen veterans of World War I, and has

stood purely as a war memorial since 1925. The

Peace Cross has never been used for religious

services.

ARGUMENT

In its opinion, the Fourth Circuit Court of Appeals

placed great weight on the size of the Peace Cross

and the _ cross’s_ traditional association with

Christianity in its holding that the cross violated the

Establishment Clause of the First Amendment. Am

Humanist Ass’n v. Maryland-National Capital Park

& Planning, Comm’n, 874 F.3d 195, 209 (4th Cir.

2017) (claiming that the “immense size and

prominence” of the Cross aggrandizes and

universalizes religion). Neither of these concerns

should override the secular history and common

understanding of the cross in Prince George’s

County. Jd. at 218-19 (Gregory, C.J., dissenting)

(explaining that the secular elements — the plaque

specifically dedicating the Cross to County veterans,

the American Legion symbol, the inscription “valor,

endurance, courage, and devotion”; the 90-year

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history as a war memorial; and its presence among

other secular war monuments — would all lead a

reasonable observer to see the Peace Cross as a war

memorial). As noted by this Court, the Establishment

Clause “does not oblige government to avoid any

public acknowledgement of religion’s role in society”.

Salazar v. Buono, 559 U.S. 700, 718-19 (2010)

(plurality opinion).

The Fourth Circuit failed to appreciate the history of

using crosses to commemorate servicemen. This is

readily apparent when one examines the use of

crosses in association with fallen U.S. soldiers: in the

fields of American military cemeteries in Europe

there are white crosses as far as the eye can see. In

one field, the Meuse-Argonne Cemetery in France

which consists of 130 acres, 14,246 white crosses

mark the graves of American soldiers who lost their

lives in World War I. See American Battle

Monuments Commission @ https://www.abmc.gov/

cemeteries-memorials/europe/meuse-argonne-ameri

can-cemetery#.WO0dd4tiWyUk. This reflects. the

cross’s history as a_ soldiers commemorative

headstone.? The expansive display of crosses in these

? A readily apparent irony in this litigation is that the deceased

Prince George's County soldiers identified on the Peace Cross

placard and those buried in the European cemeteries died, in

part, to preserve the right of the appellees to complain about

the very crosses that adorn their graves.

A

cemeteries dwarfs the single cross at issue in this

case. The United States Army (and the United

States Air Force before 1960) also uses the form of a

cross in its second-highest award, the Distinguished

Service Medal. See http://military. wikia.com/wiki/

Distinguished_Service_Cross_(United_States). The

Fourth Circuit's opinion essentially ignores this

significant history. Crosses historically used as war

memorials should not now be held unconstitutional

because their historical origins and _ intended

meaning have been forgotten.

Further, as noted in the petitions of the parties,

the site of the Peace Cross has never been used for

religious purposes or understood by Prince George’s

County citizens as a religious symbol. It stood

without challenge in Prince George’s County for

almost 100 years until the instant non-resident,

interest group targeted it for purely ideological

reasons. https://americanhumanist.org/about/ (The

mission of the American Humanist Association is “to

bring about a progressive society where being good

without a god is an accepted and respected way to

live life.”) (emphasis added). The community value of

paying tribute to war veterans should not be

eradicated at the behest of an anti-religious group

who claim offense at the monuments’ use of religious

symbolism for secular ends. That the cross is a

symbol of Christianity does not mean that it cannot

also hold other meanings that overshadow that

symbolism. Buono, 559 U.S. at 721 (“But a Latin

cross is not merely a reaffirmation of Christian

5

beliefs. It is a symbol 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.”).

If the Peace Cross offended bona fide residents of

the County certainly the appellees would have found

them and included them as parties to this action.

They did not. This is illustrative of how the Peace

Cross has always been viewed by residents of the

County as secular, ie., a war memorial and not as a

government endorsement of religion. See Van Orden

v. Perry, 545 U.S. 677, 702 (2005) (concluding that a

monument going unchallenged for 40 years was the

determinative factor indicating that it conveyed a

secular message).

This Court is "“normally' deferential" to

"articulations of a secular purpose," so long as they

* Conspicuously absent from the complaint filed in this action

are the addresses of the individual plaintiffs. Plaintiff Lowe

concedes that he is a resident of Washington, DC. Plaintiff

McNeill alleged that he was a resident of the County but his

driver's license and principal place of residence is in North

Carolina. It is clear that McNeill no longer lives in Prince

George's County or even in the State of Maryland. Like Lowe,

McNeill is a member of the American Humanist Society.

Frederick Edwards is also a member of the Humanist Society

and the “Freedom From Religion Foundation”. His ties to the

immediate community appear to be dubious at best.

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are "sincere and not a sham.” Edwards v. Aguillard,

482 U.S. 578, 586-587, 96 L. Ed. 2d 510, 107 S. Ct.

2573 (1987). There is no evidence of insincerity in

this case, and thus no justification for the Fourth

Circuit's unwillingness to fully credit the Peace

Cross’s stated purpose. That the monument bears a

religious symbol as well as a secular one does not

alter the analysis. In determining whether a secular

purpose exists, this Court has simply required that

the display not be “motivated wholly by religious

considerations.” Lynch v. Donnelly, 465 U.S. 668,

680, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984). It is

clear from the record in this case that the Peace

Cross was not erected by wholly religious

considerations. The fact that the monument uses

symbolism that can also have religious meaning does

not cast doubt on the government's valid secular

purposes for its display or the common

understanding of the monument by Prince George’s

County residents.

CONCLUSION

The Fourth Circuit erred by basing its opinion

almost entirely on the size of the Peace Cross and the

cross’s association with Christianity. The Peace

Cross has long been a landmark in Prince George’s

County and understood by its residents as a

predominantly secular symbol of peace and as a

memorial to local fallen war veterans. That the cross,

as a symbol, is also associated with Christianity

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should be of no moment as the record in this case

establishes without challenge that the history,

understanding and use of the Peace Cross in Prince

George’s County has been secular. This Court should

grant the parties’ petitions for writ of certiorari to

decide the extent to which the secular history, use

and understanding of a religious symbol may defeat

an establishment clause challenge.

August 2018

Respectfully submitted,

*Milton E. Mclver

*Counsel of Record

Jared M. McCarthy

County Attorney

Andrew J. Murray

Russell A. King, Jr.

Prince George’s County

Office of Law

1301 McCormick Drive,

Suite 4100

Largo, MD 20774

Telephone: 301-952-5888

Facsimile: 301-952-3071

MEMciver@co.pg.md.us

Counsel for Amicus Curiae

Prince George’s County,

Maryland