The Trump administration filed an amicus (or “friend-of-the-court”) brief Wednesday urging the Supreme Court to protect a 93-year-old war memorial in Bladensburg, Maryland, that is shaped like a Latin cross.
The court will soon decide whether the cross-shaped World War I memorial violates the First Amendment, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
The justices agreed to take the case on Nov. 3.
The Trump administration’s brief emphasizes the need for the high court to clarify its jurisprudence concerning religious displays in the public square. Since 2005 the justices applied two different tests for assessing the constitutionality of sectarian symbols in public settings.
Confusion has followed in lower federal courts as to which test should govern the so-called public display cases. That uncertainty, the government says, “encourages challenges to longstanding displays like the Memorial Cross, which in turn fosters the very religion-based divisiveness that the establishment clause seeks to avoid.”
“Cases like these cannot help but divide those with sincerely held beliefs on both sides,” the brief reads. “This case presents an opportunity for the Court to adopt a standard for establishment clause challenges to passive displays that will reduce factious litigation, provide clarity to lower courts, and promote consistency across cases.”
The administration then offers a solution to that problem: It urges the justices to resolve public display cases with reference to the practices of the Founding Fathers.
The brief favorably cites the high court’s approach to a 2014 case called Town of Greece v. Galloway. In that case, a five-justice majority said the town board of Greece, New York, did not violate the Constitution by opening monthly public meetings with a prayer.
The case arose when several Maryland residents represented by the American Humanist Association filed a lawsuit seeking the memorial’s renovation or removal in 2014.
A three-judge panel of the 4th U.S. Circuit Court of Appeals found for the AHA in October 2017, concluding that the memorial was an unconstitutional government endorsement of Christianity.
“While the Latin cross may generally serve as a symbol of death and memorialization, it only holds value as a symbol of death and resurrection because of its affiliation with the crucifixion of Jesus Christ,” the decision reads.
The full 4th Circuit denied review on an 8-6 vote, prompting several dissents, including one that warned that the panel decision imperils similar monuments in Arlington National Cemetery.
The American Legion erected the memorial, known locally as “Peace Cross,” to honor the World War I dead of Prince George’s County in 1925.
Nat’l Cmdr Reistad: “When our brothers at The American Legion erected this memorial in 1925, it was to prevent all of us from forgetting something we cannot see: the service and sacrifice of those who died defending freedom.” https://t.co/vFg9789lq8 @JonesDay @1stLiberty
— The American Legion (@AmericanLegion) December 18, 2018
A state commission has administered the site since 1961.
Oral arguments are scheduled at the Supreme Court for Feb. 27, 2019, and a decision is expected in June.
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