Intro to ‘In the Chain of Human Events’
John R. Houk
Intro date: 11/20/17
By Justin O. Smith
Justin Smith writes about Secular Humanist atheists winning a
4th Circuit Appellate Court case against Veterans that demanded the
Peace Cross in Bladensburg, MD be removed from public property because it is
just too Christian for those subscribing to what is essentially a Humanist
religion that denies the existence of God Almighty the Creator.
Here are a couple of Secular Humanist quotes that the 4th
Circuit essentially embraced:
"There is no place in the
Humanist worldview for either immortality or God in the valid meanings of those
terms. Humanism contends that instead of the gods creating the cosmos, the
cosmos, in the individualized form of human beings giving rein to their imagination,
created the gods." (Corliss Lamont, The Philosophy of Humanism,
(New York: Frederick Ungar, 1982) p. 145.)
"The classroom must and will
become an area of conflict between the old and the new— the rotting corpse of
Christianity, together with its adjacent evils and misery and the new faith of
Humanism, resplendent in its promise of a world in which the never-realized
Christian idea of 'Love thy Neighbor' will finally be achieved." (John J.
Dunphy, "A Religion for a New Age," The Humanist, January/February
1983, 26.)
SEE ALSO:
JRH 11/20/17
****************
In the Chain of Human Events
By Justin O. Smith
Sent 11/18/2017 7:36 PM
The forty foot tall Peace Cross in Bladensburg, Maryland, at
the intersection of Maryland Route 450 and US Alternative Route 1 and just five
miles from the U.S. Supreme Court, in the Court's cross-hairs, is the object of
the American Civil Liberties Union's and atheists' hatred, along with their
hatred for many other inherently Christian Latin crosses in America, and it is
also the source of incoherent confusion for too many federal judges. If the
American people do not battle most fiercely to reverse the
4th Circuit Court's recent ruling on
October 18th, that found the Peace Cross presence on public land to
be unconstitutional, these anti-American groups will boldly continue their
purge of anything in the public square that remotely resembles religion; and,
liberty and freedom cannot long survive, unless Americans once and for all
definitively crush these advocates of a public arena free from God.
Started in 1918 and completed in 1925
using contributions from private donors and
the American Legion, the Peace Cross honors 49 men from Prince
George's County, who died in WWI. It was erected on July 13th, 1925, and it has
stood as a memorial and a gathering place for the community for 92 years,
inscribed with the words VALOR, ENDURANCE, COURAGE and DEVOTION.
A two-to-one vote by a three judge panel overturned the
Maryland District Court's previous 2015 decision, that the use of a cross as a
military symbol of courage, sacrifice and remembrance, does not mean the state
sponsors a particular religion. The plaintiffs, American Humanist Association
(AHA), alleged that the cross unconstitutionally endorsed Christianity, and the
Court determined the memorial "excessively entangles the government in
religion", as they justified their decision through the fallacious notion
of "separation of church and state".
Chief Justice Roger Gregory wrote the dissent [***Blog
Editor: Entire Dissent Below] and noted that the Establishment Clause does
not require "purging" religion from the public square, but requires
only governmental "neutrality" on religion. He added, "In my
view, the court's ruling confuses maintenance of a highway median and a
monument in a state park with excessive religious entanglement."
The First Amendment
[Faith-Freedom.com &
Wallbuilders]
compels government not to eradicate religion from the public arena, and
although it forbids the establishment of a state religion, it doesn't forbid
the sponsorship of religion. If the expression of religious beliefs is an
inherent God-designed part of human nature, as the Declaration of Independence
proclaims, then government acting to remove religion from the public square
would have seemed to our Founding Fathers to be acting in a manner antithetical
to our founding principles.
Even should the Peace Cross be solely a Christian symbol and
not also a war memorial, the argument offered by the AHA is quite a stretch.
Establishing a state religion is a deliberate act by the government, as in the
manner the world witnessed the USSR implement militant atheism. It doesn't
happen through scattered memorials, that were erected by private groups long
ago to remember the fallen.
However, the courts have not been consistent on this issue.
In 2010, the Supreme Court ruled that the five foot cross erected in 1934 on Sunrise
Rock, in the Mojave National Reserve, and also honoring Veterans, did not
violate the Constitution; but in 2012, the Supreme Court let stand a lower
court's notion that the 43 foot tall Mount Soledad Memorial Cross, in La Jolla,
California, was a violation of the First Amendment.
The Bladensburg Peace Cross, listed in the National Registry
of Historical Places, is one of the few WWI monuments in the United States. It
was erected during a time when the Cross was a commonly understood symbol of
suffering, sacrifice and hope.
When exactly did the Peace Cross begin to violate the
Constitution? Never.
In 92 years, the Cross remained unchanged, but
America's judges became intolerant
activists after the 1947 Everson case. Leftist activist judges at
all levels of the judiciary, who wallow in a sewer of anti-Americanism, have
advanced the flawed premises of the anti-Christian bigots from groups like the
AHA, and they have violated the Constitution in impermissible fashion, by
interfering with the free exercise rights of people, who simply sought to
acknowledge their Christian heritage and honor their war dead.
The
First Liberty Institute and
other defenders of the Peace Cross fear, that if the 4th Circuit refuses their
request for the full court to reconsider the case, a dangerous precedent will
be set. This will endanger other national treasures, such as the 24 foot Cross
of Sacrifice, which was a gift from Canada that has stood in Arlington Cemetery
for 90 years. The Argonne Cross, also at Arlington, marks the graves of more
than two thousand Americans, whose remains were interred in 1920 from
battlefield cemeteries in Europe.
The American Humanist Association has also sued the city of
Pensacola, Florida over a cross that has stood in Bayview Park for 75 years,
built on the eve of WWII. Pensacola Mayor Ashton Hayward describes the cross as
"an integral part of my town's fabric, a symbol to our local citizens --
religious and nonreligious -- of our proud history of coming together during
hard times." This case is on its way to the 11th Circuit Court.
Immediately after the October 18th ruling against the Peace
Cross,
Maryland Governor Larry Hogan wrote a
letter to his attorney general directing him to support a legal
challenge against the ruling. In part it read: "The conclusion that this
memorial honoring Veterans violates the (Constitution's) Establishment Clause offends
common sense, is an affront to all Veterans, and should not be allowed to
stand. I believe very strongly, that this cherished community memorial does not
violate the Constitution. Your office will be Maryland's legal voice in this
important litigation.
While it may seem like a win each time a legal team saves
one of these crosses, by illustrating its importance as a war memorial and
settling for a land transfer, as performed by Congressman Duncan Hunter in the
Mount Soledad Cross case, rejecting the distinct religious value the Cross has
traditionally held in Christianity is not the proper direction. Our soldiers
died protecting the rights that are defining characteristics of our democratic
Republic and, specifically, our First Amendment. And with our religious
liberties central to this issue, Congress must provide clarity to an
establishment jurisprudence in shambles.
The idea that the public display of a Christian cross on
public land should be forbidden is deeply anti-American. Our country's topography
is indelibly marked by crosses, so where does this all end for the AHA and
militant atheists in their unhinged agenda to remove any semblance of religious
symbolism from the public sphere?
Where will the atheists ever draw the line?
Regardless of who likes it or not, America was founded by a
people, who were 98 percent Christian well into the 19th Century, and they
intended America to be a Christian nation tolerant of all other religions. The
first calls for America's independence, in 1769, were issued by a group of
young writers from Yale College, who were fiercely Christian, led by John
Trumbull and Timothy Dwight.
John Quincy Adams, the sixth U.S. president,
wrote: "
In the chain of human events, the
birthday of the nation is indissolubly linked to the birthday of the Savior.
The Declaration of Independence laid the cornerstone of human governance upon
the first precepts of Christianity."
George Washington
declared: "
It is the
duty of all nations to acknowledge the providence of Almighty God, to obey His
will, to be grateful for His benefits, and humbly to implore His protection and
favor."
This attack on the Peace Cross is also an attack on America
and an attempt to undermine the idea of America, predicated on each
individual's inherent right that lies deep within our heart and soul to have
individual recourse to a power greater than the state. This is a war against
our Christian faith and our shared memories that we must win, if we wish to
prevent America's descent toward the darkest days of antiquity and preserve for
America's Children the Heritage of Liberty our Founding Fathers left for us.
By Justin O. Smith
______________________
*** Chief Judge Roger Gregory dissent begin page 34 of
PDF
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
AMERICAN HUMANIST ASSOCIATION; STEVEN LOWE; FRED EDWORDS;
BISHOP MCNEILL, --- Plaintiffs – Appellants,
v.
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION,
--- Defendant – Appellee,
THE AMERICAN LEGION; THE AMERICAN LEGION DEPARTMENT OF
MARYLAND; THE AMERICAN LEGION COLMAR MANOR POST 131, --- Intervenors/Defendants
– Appellees,
=================
[Blog Editor: Chief Judge Roger Gregory dissent begin
page 34 of PDF]
GREGORY, Chief Judge, concurring in part and dissenting in
part:
I agree with the majority’s holding that Appellants have
standing under 42 U.S.C. § 1983 to bring this action for a violation of the
Establishment Clause. But I disagree with the majority’s ultimate conclusion
that the display and maintenance of the war memorial in this case violates the Establishment
Clause. I therefore respectfully dissent in part.
I.
The Establishment Clause provides that “Congress shall make
no law respecting an establishment of religion.” U.S. Const. amend. I. To
properly understand and apply the Establishment Clause, it must be viewed “in
the light of its history and the evils it was designed forever to suppress.”
Everson v. Bd. of Educ., 330 U.S. 1, 14–15 (1947). The early colonization of
America was a time marked with religious persecution. Immigrating settlers fled
religious suppression in Europe only to be met with similar treatment in
America. “[M]en and women of varied faiths who happened to be in a minority in
a particular locality were persecuted because they steadfastly persisted in
worshipping God only as their own consciences dictated.” Id. at 10. Those
regarded as nonconformists were required “to support government-sponsored
churches whose ministers preached inflammatory sermons designed to strengthen
and consolidate the established faith by generating a burning hatred against
dissenters.” Id.
The Establishment Clause was intended to combat the practice
of “compel[ling individuals] to support and attend government favored
churches.” Id. at 8; accord Myers v. Loudoun Cty. Pub. Sch., 418 F.3d 395, 402
(4th Cir. 2005). The Clause’s historical setting reveals that “[i]ts first and
most immediate purpose rested on the belief that a union of government and
religion tends to destroy government and to degrade religion.” Engel v. Vitale,
370 U.S. 421, 431 (1962). The realization of its goal meant that the government
must “‘neither engage in nor compel religious practices,’ that it must ‘effect
no favoritism among sects or between religion and nonreligion,’ and that it
must ‘work deterrence of no religious belief.’” Van Orden v. Perry, 545 U.S.
677, 698 (2005) (Breyer, J., concurring) (plurality opinion) (quoting Abington
School Dist. v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring)).
But the Clause does not require the government “to purge
from the public sphere” any reference to religion. Id. at 699. “Such absolutism
is not only inconsistent with our national traditions, but would also tend to
promote the kind of social conflict the Establishment Clause seeks to avoid.”
Id. (citations omitted). While neutrality may be the “touchstone” of the
Establishment Clause, it more so serves as a “sense of direction” than a
determinative test. McCreary Cty. v. Am. Civil Liberties Union, 454 U.S. 844
(2005). We cannot view neutrality as some sort of “brooding and pervasive
devotion to the secular and a passive, or even active, hostility to the
religious.” Schempp, 374 U.S. at 306 (Goldberg, J., concurring). Thus, in
reviewing the challenged war memorial, this Court must seek general rather than
absolute neutrality. We do so by engaging in the three-factor analysis
delineated in Lemon v. Kurtzman (the “Lemon test”), which requires that the
memorial have a secular purpose; have a principal or primary effect that
neither advances, inhibits, nor endorses religion; and not foster “an excessive
government entanglement with religion.” 403 U.S. 602, 612–13 (1971). The
memorial “must satisfy each of the Lemon test’s three criteria” to pass
constitutional muster. Lambeth v. Bd. of Comm’rs of Davidson Cty., 407 F.3d
266, 269 (4th Cir. 2005) (citing Mellen v. Bunting, 327 F.3d 355, 367 (4th Cir.
2003)).
II.
A.
I will briefly reiterate the operative facts. In
Bladensburg, Maryland, in a median at the intersection of Maryland Route 450
and U.S. Route 1, stands a war memorial consisting of a forty-foot-tall
concrete Latin cross (the “Memorial”). The Memorial and the median are
currently owned by Appellee Maryland-National Capital Park and Planning
Commission (the “Commission”). Intervenor-Appellee American Legion’s symbol is
displayed in the middle of the cross on both faces. The cross sits on a base
and includes a plaque that lists the names of the forty-nine Prince George’s
County residents who died in World War I. J.A. 1891. The plaque also states,
“THIS MEMORIAL CROSS DEDICATED TO THE HEROES OF PRINCE GEORGE’S COUNTY MARYLAND
WHO LOST THEIR LIVES IN THE GREAT WAR FOR THE LIBERTY OF THE WORLD,” and
includes a quotation from President Woodrow Wilson. Id. Also, each face of the
base is inscribed with one of four words: “VALOR,” “ENDURANCE,” “COURAGE,” and
“DEVOTION.” J.A. 1963.
In 1918, a group of private citizens led the charge to
construct and finance the Memorial. The donors signed a pledge stating that
they, “trusting in God, the Supreme Ruler of the universe,” pledged their faith
in the forty-nine war dead, whose spirits guided them “through life in the way
of godliness, justice, and liberty.” J.A. 1168. The group also circulated a
fundraising flyer stating,
Here, those who come to the Nation’s Capital to view the
wonders of its architecture and the sacred places where their laws are made and
administered may, before this Cross, rededicate[] themselves to the principles
of their fathers and renew the fires of patriotism and loyalty to the nation
which prompted these young men to rally to the defense of the right. And here
the friends and loved ones of those who were in the great conflict will pass
daily over a highway memorializing their boys who made the supreme sacrifice.
J.A. 2303.
A groundbreaking ceremony was held for the Memorial and for
Maryland Route 450 (then known as the National Defense Highway) in late 1919.
Several local officials spoke about the fallen soldiers and how both the
Memorial and highway would commemorate their bravery and sacrifice. But the
private group ultimately failed to raise enough money to construct the Memorial
and abandoned the project. The local post of the American Legion, a
congressionally chartered veterans service organization, then took up the task
and completed the Memorial on July 25, 1925. That day, the post held a ceremony
which included multiple speeches regarding the Memorial’s representation of the
men who died fighting for this country and an invocation and benediction
delivered by local clergymen.
Over time, additional monuments honoring veterans were built
near the Memorial (known as the “Veterans Memorial Park”). Because the Memorial
sits in the middle of a median and is separated by a busy highway intersection,
the closest additional monument is about 200 feet away. Since the Memorial’s
completion, numerous events have been hosted there to celebrate Memorial Day,
Veterans Day, the Fourth of July, and the remembrance of September 11th. These
ceremonies usually include an invocation and benediction, but the record
demonstrates that only three Sunday religious services were held at the
Memorial—all of which occurred in August 1931. J.A. 347.
Due to increasing traffic on the highway surrounding it, the
Commission acquired the Memorial and the median where it is located from the
American Legion in March 1961. Since that time, the Commission has spent
approximately $117,000 to maintain and repair the Memorial. In 2008, it set
aside an additional $100,000 for renovations, of which only $5,000 has been
spent as of 2015. J.A. 562–65. On February 25, 2014, more than fifty years
after the Memorial passed into state ownership, Appellants initiated this suit
against the Commission under 42 U.S.C. § 1983 alleging a violation of the
Establishment Clause.
B.
By concluding that the Memorial violates the Establishment
Clause, the majority employed the Lemon test “with due consideration given to
the factors outlined in Van Orden.” Maj. Op. at 16. In Van Orden, a plurality
of the Supreme Court determined that the Lemon test was not useful when
evaluating a “passive monument.” 545 U.S. at 686. Instead, the Court’s analysis
was “driven both by the nature of the monument and by our Nation’s history.”
Id. As the majority recognizes, Justice Breyer’s concurrence is the controlling
opinion in Van Orden. Maj. Op. at 14. Justice Breyer states that the Court’s
Establishment Clause tests, such as Lemon, cannot readily explain the Clause’s
tolerance of religious activities in “borderline cases,” as there is “no single
mechanical formula that can accurately draw the constitutional line in every
case.” Van Orden, 454 U.S. at 699– 700 (Breyer, J., concurring). “If the
relation between government and religion is one of separation, but not of
mutual hostility and suspicion, one will inevitably find difficult borderline
cases.” Id. at 700. Instead of applying Lemon to the challenged Ten
Commandments display, Justice Breyer exercised his “legal judgment” and
evaluated the context of the display and how the undeniably religious text of
the Commandments was used. Id. at 700–04. His concurrence, however, also noted
that Lemon provides a “useful guidepost[]—and might well lead to the same
result”—for “no exact formula can dictate a resolution to such fact-intensive
cases.” Id. at 700.
Relying on Lemon, and drawing guidance from Van Orden, the
majority determined that the Commission articulated a legitimate secular
purpose for displaying the Memorial. Nevertheless, the majority concluded that
the Memorial failed Lemon’s second and third factors, finding that a reasonable
observer would conclude that the Memorial has the primary effect of endorsing
religion and the Commission’s maintenance of the Memorial constitutes excessive
entanglement with religion. In my view, the majority misapplies Lemon and Van
Orden to the extent that it subordinates the Memorial’s secular history and
elements while focusing on the obvious religious nature of Latin crosses
themselves; constructs a reasonable observer who ignores certain elements of
the Memorial and reaches unreasonable conclusions; and confuses maintenance of
a highway median and monument in a state park with excessive religious
entanglement.
III.
Because Appellants do not challenge the district court’s
finding that the Commission has demonstrated a secular purpose for displaying
and maintaining the Memorial (the first Lemon factor), I will discuss in turn
the majority’s evaluation of the second and third Lemon factors—whether the
Memorial has the primary effect of advancing or inhibiting religion and whether
the government is excessively entangled with religion.
A.
Under Lemon’s second factor, we must determine “whether a
particular display, with religious content, would cause a reasonable observer
to fairly understand it in its particular setting as impermissibly advancing or
endorsing religion.” Lambeth, 407 F.3d at 271. This reasonable observer inquiry
“requires the hypothetical construct of an objective observer who knows all of
the pertinent facts and circumstances surrounding the [display] and its
placement.” Salazar v. Buono, 559 U.S. 700, 721 (2010) (plurality opinion). We
should not ask “whether there is any person who could find an endorsement of
religion, whether some people may be offended by the display, or whether some
reasonable person might think the State endorses religion.” Capitol Square
Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O’Connor, J.,
concurring) (internal quotation marks omitted). Instead, we must determine
“whether . . . the display’s principal or primary effect is to advance or
inhibit religion; or, put differently, whether an informed, reasonable observer
would view the display as an endorsement of religion.” Lambeth, 407 F.3d at
272.
It is undeniable that the Latin cross is the “preeminent
symbol of Christianity.” Maj. Op. at 18. But we must be careful not to “focus
exclusively on the religious component” of a display, as that “would inevitably
lead to its invalidation under the Establishment Clause.” Lambeth, 407 F.3d at
271 (quoting Lynch v. Donnelly, 465 U.S. 668, 680 (1984)). Indeed, the Supreme
Court “has consistently concluded that displays with religious content—but also
with a legitimate secular use—may be permissible under the Establishment
Clause.” Id. (citing Cty. of Allegheny v. Am. Civil Liberties Union, 492 U.S.
573, 579 (1989)). A reasonable observer would be aware that the cross is “not
merely a reaffirmation of Christian beliefs,” for it is “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.” Buono,
559 U.S. at 721.
Despite the religious nature of the Latin cross, a
reasonable observer must also adequately consider the Memorial’s physical
setting, history, and usage. The Memorial was created to commemorate the
forty-nine soldiers who lost their lives in World War I, as explicitly stated
on the plaque attached to its base. See J.A. 1891 (“THIS MEMORIAL CROSS
DEDICATED TO THE HEROES OF PRINCE GEORGE’S COUNTY MARYLAND WHO LOST THEIR LIVES
IN THE GREAT WAR FOR THE LIBERTY OF THE WORLD.”). The plaque also includes a
quotation from President Woodrow Wilson stating, “The right is more precious
than peace. We shall fight for the things we have always carried nearest our
hearts. To such a task we dedicate our lives.” Id. Each face of the cross
includes the American Legion seal and each face of the base is inscribed with
one of four words: “VALOR,” “ENDURANCE,” “COURAGE,” and “DEVOTION.” J.A. 1963.
The Memorial has functioned as a war memorial for its entire history, and it
sits among other secular monuments in Veterans Memorial Park, though it is
separated from the other monuments by intersecting highways.
The majority concludes that the size of the Latin cross
making up the Memorial overwhelms these secular elements. In the majority’s
view, the Memorial is unconstitutional based predominantly on the size of the
cross, and neither its secular features nor history could overcome the
presumption. But such a conclusion is contrary to our constitutional directive.
We must fairly weigh the appearance, context, and factual background of the
challenged display when deciding the constitutional question. See Lynch, 465
U.S. at 679–80; Cty. of Allegheny, 492 U.S. at 598–600. Although a reasonable
observer would properly notice the Memorial’s large size, she would also take
into account the plaque, the American Legion symbol, the four-word inscription,
its ninety-year history as a war memorial, and its presence within a vast state
park dedicated to veterans of other wars. Would the majority’s version of a
reasonable observer be satisfied and better equipped to evaluate the Memorial’s
history and context if the cross were smaller? Perhaps if it were the same size
as the other monuments in the park? Though Establishment Clause cases require a
fact-intensive analysis, we must bear in mind our responsibility to provide the
government and public with notice of actions that violate the Constitution.
What guiding principle can be gleaned from the majority’s focus on the cross’s
size? Understandably, the majority’s decision would lead to per se findings
that all large crosses are unconstitutional despite any amount of secular
history and context, in contravention of Establishment Clause jurisprudence.
The majority also makes much of the Memorial’s isolation
from the other monuments in Veterans Memorial Park, as it sits in the median of
a now busy highway, making it difficult to access. But a reasonable observer
would note that the Memorial was placed there as part of the concurrent
creation of the National Defense Highway to commemorate the soldiers of World
War I, not as a means of endorsing religion. And, though Veterans Memorial Park
does not include any other religious symbols as memorials, there is no evidence
that the state formally foreclosed the possibility of erecting any other
religious symbol. Also, the reasonable observer would note that the Memorial’s
physical setting does not lend itself to any religious worship. Van Orden, 545
U.S. at 702 (stating that religious display’s location in large park containing
other monuments suggested “little or nothing sacred,” as it illustrated
residents’ historical ideals and “did not readily lend itself to meditation or
any other religious activity”).
Additionally, due to the Memorial’s location, the majority
explains that a reasonable observer would not be able to easily examine the
Memorial’s secular elements. Maj. Op. at 23. This is because the Memorial “is
located in a high-traffic area and passers-by would likely be unable to read
the plaque,” which is small and badly weathered. Id. at 23. However, the
reasonable observer’s knowledge is not “limited to the information gleaned
simply from viewing the challenged display.” Pinette, 515 U.S. at 780–81
(O’Connor, J., concurring). That the average person in the community may have
difficulty viewing all of the secular elements of the Memorial while stuck in
traffic or driving at high speeds is of no consequence, for the reasonable
observer “is not to be identified with any ordinary individual, . . . but is
rather a personification of a community ideal of reasonable behavior” who is
“deemed aware of the history and context of the community and forum in which
the religious display appears.” Id. at 779–80 (internal quotation marks and
citations omitted). Thus, the reasonable observer’s ability to consider these
secular elements is by no means diminished.
Further, quoting Trunk v. City of San Diego, 629 F.3d 1099,
1116 n.18 (9th Cir. 2011), the majority states that the large size and
isolation of the Memorial “evokes a message of aggrandizement and
universalization of religion, and not the message of individual memorialization
and remembrance that is presented by a field of gravestones.” Maj. Op. at 22.
In Trunk, the Ninth Circuit considered a forty-three-foot free-standing cross
and veterans memorial erected in a state park. 629 F.3d at 1101. The court
evaluated the history of the Latin cross generally, its use as a war memorial,
the history of the particular war memorial at issue, and its physical setting.
Id. at 1102–05, 1110–24. The cross in Trunk had no secular elements; instead,
it was unadorned and without any physical indication that it was a war memorial
until after litigation was initiated to remove it. Id. at 1101–02; see also
Smith v. Cty. of Albemarle, 895 F.2d 953, 958 (4th Cir. 1990) (concluding that
crèche, unassociated with any secular symbols, prominently displayed in front
of government building, and unaccompanied by any other religious or
nonreligious displays, conveyed message of governmental endorsement of
religion). The court concluded that a reasonable observer would perceive the
presence of the cross as the federal government’s endorsement of Christianity,
due in part to its long history of serving as a site of religious observance,
with no indication of any secular purpose for almost three decades. Id. at
1125.
But here, the Memorial has always served as a war memorial,
has been adorned with secular elements for its entire history, and sits among
other memorials in Veterans Memorial Park. The Memorial’s predominant use has
been for Veterans Day and Memorial Day celebrations, although three religious
services were conducted at the Memorial nearly ninety years ago. Also, the
invocations and benedictions performed at the annual veterans celebrations are
not enough to cause a reasonable observer to perceive the Memorial as an
endorsement of Christianity in light of its overwhelmingly secular history and
context. Further, guidance from Van Orden provides that the Memorial’s
ninety-year existence and fifty-year government ownership without litigation is
a strong indication that the reasonable observer perceived its secular message.
See 545 U.S. at 702–03 (stating that challenged monument’s presence on
government property for forty years provided determinative factor that it
conveyed predominately secular message). The Memorial stands at a busy
intersection, yet this case is the first time the Memorial has been challenged
as unconstitutional. Those fifty years strongly suggest “that few individuals,
whatever their system of beliefs, are likely to have understood the [Memorial]
as amounting, in any significantly detrimental way, to a government effort . .
. primarily to promote religion over nonreligion,” or to “engage in,” “compel,”
or deter any religious practice or beliefs. Id. at 702 (quoting Schempp, 374
U.S. at 305 (Goldberg, J., concurring)); see also Buono, 559 U.S. at 716 (“Time
also has played its role. [After] nearly seven decades[,] . . . the cross and
the cause it commemorated had become entwined in the public consciousness.”).
This significant passage of time must factor into the Court’s analysis and
“help[] us understand that as a practical matter of degree [the Memorial] is
unlikely to prove divisive.” Van Orden, 545 U.S. at 702.
With the foregoing facts, circumstances, and principles in
mind, I conclude that a reasonable observer would understand that the Memorial,
while displaying a religious symbol, is a war memorial built to celebrate the
forty-nine Prince George’s County residents who gave their lives in battle.
Such an observer would not understand the effect of the Commission’s display of
the Memorial—with such a commemorative past and set among other memorials in a
large state park—to be a divisive message promoting Christianity over any other
religion or nonreligion. A cross near a busy intersection “need not be taken as
a statement of governmental support for sectarian beliefs. The Constitution
does not oblige government to avoid any public acknowledgment of religion’s
role in society. Rather, it leaves room to accommodate divergent values within
a constitutionally permissible framework.” Buono, 559 U.S. at 718–19 (citations
omitted). We must be careful not to push the Establishment Clause beyond its
purpose in search of complete neutrality. “[U]ntutored devotion to the concept
of neutrality can lead to invocation or approval of results which partake not
simply of that noninterference and noninvolvement with the religious which the
Constitution commands,” but of extreme commitment to the secular, “or even
active, hostility to the religious.” Van Orden, 545 U.S. at 699 (quoting
Schempp, 374 U.S. at 306 (Goldberg, J., concurring)). Finding that a reasonable
observer would perceive the Memorial as an endorsement of Christianity would
require that we pursue a level of neutrality beyond our constitutional mandate.
I therefore conclude that the Memorial does not violate the second factor of
the Lemon test.
B.
The Lemon test’s final factor asks whether the challenged
display has created an “excessive entanglement” between government and
religion. Lambeth, 407 F.3d at 272– 73. “The kind of excessive entanglement of
government and religion precluded by Lemon is characterized by ‘comprehensive,
discriminating, and continuing state surveillance.’” Id. at 273 (quoting Lemon,
403 U.S. at 619). This inquiry is one of “kind and degree,” Lynch, 465 U.S. at
684, “and because some interaction between church and state is inevitable, the
Supreme Court has reaffirmed that the ‘[e]ntanglement must be “excessive”
before it runs afoul of the Establishment Clause,’” Koenick v. Felton, 190 F.3d
259, 268 (4th Cir. 1999) (quoting Agostini v. Felton, 521 U.S. 203, 233
(1997)).
The majority concludes that the Memorial fosters excessive
entanglement because of the Commission’s ownership and maintenance of the
Memorial. But the Commission’s maintenance of the Memorial and the land
surrounding it could hardly be considered the sort of state surveillance that
Lemon intends to prohibit. See Lemon, 403 U.S. at 615–20 (concluding that
challenged action excessively entangled state with religion by requiring state
to supplement salaries for teachers in parochial schools); see also Mellen, 327
F.3d at 375 (determining that public university’s supper prayer violated
Lemon’s third prong because school officials “composed, mandated, and monitored
a daily prayer”). Rather, the Commission is merely maintaining a monument within
a state park and a median in between intersecting highways that must be well
lit for public safety reasons. There is no evidence that the Commission
consults with any churches or religious organizations to determine who may
access the Memorial for events. Nor is there evidence that the Commission is
required to be involved in any church-related activities to maintain the
Memorial.
Further, the majority observes that “any use of public funds
to promote religious doctrines violates the Establishment Clause.” Bowen v.
Kendrick, 487 U.S. 589, 623 (1988) (O’Connor, J., concurring). But, in
Agostini, the Supreme Court held that a federally funded program that paid
public school teachers to teach disadvantaged children in parochial schools did
not cause an excessive entanglement between church and state. 521 U.S. at
234–35. Likewise, the Commission’s use of $122,000 over the course of
fifty-plus years for lighting and upkeep is not a promotion of any religious
doctrine, as the Memorial is a historical monument honoring veterans.
I therefore conclude that the Memorial does not violate the
third factor of the Lemon test.
* * *
This Memorial stands in witness to the VALOR, ENDURANCE,
COURAGE, and DEVOTION of the forty-nine residents of Prince George’s County,
Maryland “who lost their lives in the Great War for the liberty of the world.”
I cannot agree that a monument so conceived and dedicated and that bears such
witness violates the letter or spirit of the very Constitution these heroes
died to defend. Accordingly, I would affirm the district court’s judgment.
______________
Edited by John R. Houk
Source links as well as text embraced by brackets are by
the Editor.
© Justin O. Smith
