Hundreds of crosses at war memorials across the nation are at risk because a panel from the Fourth U.S. Court of Appeals condemned the Bladensburg World War I Veterans Memorial to destruction and the full court refused to reconsider, contends one of the judges.
The warning came from Fourth Circuit Judge Paul Niemeyer.
The legal team defending the memorial said it will appeal to the U.S. Supreme Court.
Niemeyer’s opinion was blunt.
“The holding not only violates [precedent], it also needlessly puts at risk hundreds of monuments with similar symbols standing on public grounds across the country, such as those in nearby Arlington National Cemetery,” he said.
“Because this ruling has such far-reaching and unnecessary consequences, it should be reheard by our court en banc, and I dissent from the vote not to do so.”
The non-profit legal group First Liberty has been fighting the lawsuit filed by atheists who contend the presence of the cross on government property — the land was private when the memorial was built — violates the First Amendment.
“The decision of the three-judge panel sets dangerous precedent for veterans memorials and cemeteries across America, and we cannot allow it to be the final word,” said Hiram Sasser, deputy chief counsel for First Liberty. “If this decision stands, other memorials—including those in nearby Arlington Cemetery—will be targeted for destruction as well. The American Legion will appeal this case to the U.S. Supreme Court.”
Other judges also dissented, including one who wrote: “The dead cannot speak for themselves. But may the living hear their silence. We should take care not to traverse too casually the line that separates us from our ancestors and that will soon enough separate us from our descendants. The present has many good ways of imprinting its values and sensibilities upon society. But to roil needlessly the dead with the controversies of the living does not pay their deeds or their time respect.”
The Bladensburg World War I Veterans Memorial is a cross-shaped memorial erected by the American Legion in 1925 in honor of 49 Bladensburg-area men who gave their lives while serving in World War I.
The cross is owned and run by the Maryland-National Capital Park and Planning Commission. The commission was created by the Maryland General Assembly in 1927, but its board is appointed by Prince George’s and Montgomery counties.
It was a bare majority of two judges on the three-judge panel who decided that atheists who claim they are offended when they drive by the memorial cross must be appeased.
Judges Jim Wynn and Stephanie Thacker wrote in their opinion: “Appellants Steven Lowe, Fred Edwords, and Bishop McNeill are non-Christian residents of Prince George’s County who have faced multiple instances of unwelcome contact with the cross.”
The judges said that “as residents they have each regularly encountered the cross while driving in the area, believe the display of the cross amounts to governmental affiliation with Christianity, are offended by the prominent government display of the cross, and wish to have no further contact with it.”
The judges said then they were not mandating any particular action such as “removing the arms or razing the cross entirely.”
In their majority opinion, the judges referred to a “purported war memorial” and said the parties “are free to explore alternative arrangements that would not offend the Constitution.”
Chief Judge Roger Gregory, the third judge on the three-judge panel, dissented, arguing the Constitution “does not require the government to purge from the public sphere any reference to religion.”
He said the U.S. Supreme Court “has consistently concluded that displays with religious content – but also with a legitimate secular use – may be permissible under the Establishment Clause.”
“The memorial has always served as a war memorial,” he said, “has been adorned with secular elements for its entire history, and sits among other memorials in Veterans Memorial Park.”
Further, over its 90-year history, it had never before been deemed offensive.
The Bladensburg memorial has been a target of the American Humanist Association and others for several years.
The AHA, joined by the Council on American-Islamic Relations, or CAIR, claimed in district court that the memorial violates the establishment clause of the First Amendment. At the trial court, a federal judge decided the claim was nonsense and upheld the rights of the state to maintain the memorial.
“This veterans memorial has stood in honor of the fallen for almost 100 years, and should be allowed to stand for 100 years more,” Noel Francisco, counsel for the American Legion, said earlier in the case. “We stand ready to defend the memorial and the men it honors against this meritless attack.”
The memorial was launched by a community group at the time of World War I and later completed by the American Legion to contain a plaque listing the names of 49 men from Prince George’s County who died in the conflict.
The site eventually came under government control because although it was built on private land, the local highways over the years expanded to the point the state thought safety issues were significant enough to take control of the site, which is now in a median.