American Legion v. American Humanist Association
For more than 90 years, a war memorial in Bladensburg, Maryland, has stood as a reminder of the ultimate sacrifice made by local soldiers in World War I. Yet in 2014, the American Humanist Association (AHA) sued to remove the memorial simply because it includes a cross. Becket defends war memorials of all shapes and sizes from attempts by atheist activists to erase religious symbols from the public square. In December 2018, Becket filed a friend-of-the-court brief urging the Supreme Court to reverse the Fourth Circuit’s decision and scrap the Lemon test in favor of an approach that returns the Establishment Clause to its historical meaning. The Supreme Court must decide if historic symbols must be scrubbed from the public square simply because they are religious.
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“The nation’s founders knew what an unconstitutional establishment of religion looked like, and a passive symbol like a memorial cross wasn’t it.” –Eric Baxter, vice president and senior counsel at Becket
A beloved symbol of sacrifice and honor
Known locally as the Peace Cross, the Bladensburg memorial was erected in 1925 on private land with funds raised by the American Legion, a military veterans association. The memorial was designed by mothers who lost their sons in the war, and they modeled it after those memorialized in the celebrated poem “In Flanders Fields” that stood “row on row” to “mark [the] place” where their sons lay.
Today the Peace Cross stands among a number of other war memorials and, since 1961, it has been owned by the Maryland-National Capital Park and Planning Commission as a historic site.
Atheist activists attempt to tear down history
Yet in 2014 the American Humanist Association sued, arguing that the Peace Cross is a government establishment of religion. But the Constitution does not require religion to be stripped from our nation’s history and culture. The cross is an internationally recognized symbol of sacrifice and loss and a frequently used symbol to honor fallen soldiers. Mere disagreement with something one sees should not be confused with a forbidden religious establishment.
In April 2016, Becket filed a friend-of-the-court brief with Sidley Austin LLP at the U.S. Court of Appeals at the Fourth Circuit defending the memorial, stating it “does not violate the Establishment Clause because it bears none of the historical hallmarks of an establishment of religion.” But in October 2017, the Fourth Circuit ruled against the memorial using the notorious Lemon test, a malleable three-part legal test that has been criticized harshly by many Supreme Court justices. The American Legion, represented by First Liberty Institute of Plano, Texas, and the Jones Day law firm, appealed to the Supreme Court.
Defending religion in the public square at the Supreme Court
In December 2018, Becket, represented by Stanford law professor and former Tenth Circuit Judge Michael W. McConnell, filed a friend-of-the-court brief urging the Supreme Court to reverse the Fourth Circuit’s decision and scrap the Lemon test in favor of an approach that returns the Establishment Clause to its historical meaning. Oral arguments took place on February 27, 2019. During oral argument, Chief Justice Roberts raised the argument Becket had urged in brief suggesting that a historical approach offers a clear way for resolving disputes about religious symbols in the public square.
On June 20, 2019, the U.S. Supreme Court ruled 7–2 in favor of the Peace Cross, allowing it to remain standing. The Court’s opinion reversed the Fourth Circuit’s decision against the Peace Cross and stated that, for many, “destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.” Becket’s friend-of-the-court brief was cited in concurring opinions by Justice Thomas and Justice Gorsuch.
In Kondrat’yev, et al v. City of Pensacola, Becket is also fighting a militant atheist lawsuit against a World War II-era cross in Pensacola, Florida, that has stood as a symbol of patriotism and fellowship for more than 75 years. On June 28, 2019 the Supreme Court sent the Pensacola case back to the Eleventh Circuit to be reconsidered in light of their Bladensburg decision. In February 2020 the Eleventh Circuit ruled that the cross is constitutional and should remain standing.
Importance to religious liberty:
- Public Square: Religion is a natural part of human culture and has a natural place in the public square. The government is not required to strip the public square of important symbols just because they are religious.