The American Legion and other supporters of a prominent cross-shaped war monument on a Maryland highway median just outside Washington have asked a federal appeals court to reconsider a ruling that found having the memorial on public land violates the U.S. Constitution.
Supporters asked the 4th U.S. Circuit Court of Appeals to hold a hearing by the full court. Last month, a three-judge panel found that the 92-year-old World War I monument in Bladensburg known as the Peace Cross “excessively entangles the government in religion.”
On Wednesday, the 4th Circuit temporarily suspended its ruling until it decides whether to hold a rehearing.
Construction of the 40-foot-high cross was completed in 1925 after a group of mothers decided to build a memorial to honor their sons and others from Prince George's County who died in World War I. The mothers chose a cross to mirror the cross-shaped grave markers in the foreign cemeteries where their sons were buried, according to the American Legion, which helped build the memorial.
In 1960, the Maryland-National Capital Park and Planning Commission assumed ownership of the memorial to maintain safety near a busy highway intersection, the commission argued in court documents asking the court to reconsider its ruling. A large bronze tablet lists the names of 49 residents who died.
“The Commission's interests in the memorial at issue here are about traffic safety and stewardship of local history,” the group's attorney wrote.
The American Humanist Association, an atheist group that advocates for the separation of church and state, challenged the constitutionality of the cross, saying it endorses Christianity while ignoring non-Christian veterans.
A U.S. District Court judge ruled that the cross doesn't violate the First Amendment. The three-judge panel of the 4th Circuit overturned that ruling last month in a 2-1 decision.
Judges Stephanie Thacker and James Wynn Jr. found that “the sectarian elements easily overwhelm the secular ones” and that the memorial “aggrandizes the Latin cross” to the extent that someone who sees it would conclude the government entity that owns it endorses Christianity.
Chief Judge Roger Gregory wrote in a dissenting opinion that the First Amendment doesn't require the government to “purge from the public sphere any reference to religion.”
In addition to the American Legion and the commission, two dozen states filed friend-of-the court briefs in court supporting the memorial. Many of the states noted that they also have war memorials containing religious symbols.
After the 4th Circuit panel found that the memorial was unconstitutional, Maryland Gov. Larry Hogan called the ruling “an affront to all veterans.”
David Niose, legal director of the American Humanist Association, said Thursday that the memorial is, “by definition, religious.”
“If the government is going to construct or maintain a memorial for soldiers on government property, then the memorial cannot favor one religion. And a 40-foot concrete Christian cross does exactly that,” Niose said. “It exalts and honors one religion to the exclusion of all others, and that's not what should be on government property.”
Hiram Sasser, general counsel for First Liberty Institute, a Texas-based law firm representing The American Legion, said the group estimates that there are hundreds of veteran memorials around the country that contain some religious imagery.
“We want to make sure that the honor and respect for our veterans and their selfless sacrifice and service is preserved,” Sasser said.
“These were the types of monuments put up at the time by the American Legion and VFW and others. They should not be torn down because today somebody might drive by and say, `Well, I'm offended.“’