American Legion v. American Humanist Association

Becket Role:
Amicus
Case Start Date:
February 25, 2014
Deciding Court:
Fourth Circuit Court of Appeals
Original Court:
District Court of Maryland
Practice Area(s):

Status

A three-judge panel of the Fourth Circuit ruled against the Bladensburg cross and the en banc Fourth Circuit declined to review that decision. The defendants sought review from the United States Supreme Court. In November 2018, the Supreme Court agreed to hear the case.

Case Summary

For 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. 

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 World War I memorials and, since 1961, it has been owned by the Maryland-National Capital Park and Planning Commission as a historic site. 

Yet AHA 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.  

The American Legion is represented by First Liberty Institute of Plano, Texas and the Jones Day law firm. In April 2016, Becket filed a friend-of-the-court brief with Sidley Austin LLP defending the cross memorial, stating, “the Memorial does not violate the Establishment Clause because it bears none of the historical hallmarks of an establishment of religion.” But in October 2017, the U.S. Court of Appeals at 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 is now appealing to the Supreme Court. In July 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. In November 2018, the Supreme Court agreed to hear the case.

Mere disagreement with something one sees should not be confused with forbidden religious coercion by the government. 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 70 years.