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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0847%3A07

## Record

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

## Text

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
GREENE censcssessescererevrsvevensesscnssseussussnsusseusvmmennenss 2

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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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l

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.

2

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

3

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.

6

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

7

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0847%3A07. Public record. Not legal advice.