Am. Humanist Ass'n v. Maryland-National Capital Park

874 F.3d 195

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,Freedom From Religion Foundation; Center for Inquiry, Amici Supporting Appellant,The Beckett Fund for Religious Liberty; Joe Manchin ; Doug Collins ; Vicky Hartzler; Jody Hice; Evan Jenkins; Jim Jordan; Mark Meadows; Alex Mooney; State of West Virginia; State of Alabama; State of Arizona; State of Arkansas; State of Florida; State of Georgia; State of Hawaii; State of Idaho; State of Indiana; State of Kansas; State of Kentucky; State of Louisiana; State of Michigan; State of Montana; State of Nevada; State of North Dakota; State of Ohio; State of Oklahoma; State of Rhode Island; State of South Carolina; State of South Dakota; State of Texas; State of Utah; State of Virginia; State of Wisconsin, Amici Supporting Appellee.

No. 15-2597.

United States Court of Appeals, Fourth Circuit.

ARGUED: December 7, 2016

Decided: October 18, 2017

ARGUED: Monica Lynn Miller, AMERICAN HUMANIST ASSOCIATION, Washington, D.C., for Appellants. Christopher John DiPompeo, JONES DAY, Washington, D.C.; William Charles Dickerson, MARYLAND–NATIONAL CAPITAL PARK AND PLANNING COMMISSION, Riverdale, Maryland, for Appellees. ON BRIEF: David A. Niose, AMERICAN HUMANIST ASSOCIATION, Washington, D.C.; Daniel P. Doty, LAW OFFICE OF DANIEL P. DOTY, P.A., Baltimore, Maryland, for Appellants. Adrian R. Gardner, Tracey A. Harvin, Elizabeth L. Adams, MARYLAND–NATIONAL CAPITAL PARK AND PLANNING COMMISSION, Riverdale, Maryland, for Appellee Maryland–National Capital Park and Planning Commission; Noel J. Francisco, JONES DAY, Washington, D.C.; Roger L. Byron, Kenneth A. Klukowski, FIRST LIBERTY, Plano, Texas, for Appellees The American Legion, The American Legion Department of Maryland, and The American Legion Colmar Manor Post 131. Patrick C. Elliott, FREEDOM FROM RELIGION FOUNDATION, Madison, Wisconsin, for Amici Freedom From Religion Foundation and Center For Inquiry. Eric C. Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C.; Paul J. Zidlicky, SIDLEY AUSTIN LLP, Washington, D.C., for Amicus The Becket Fund for Religious Liberty. Charles J. Cooper, David H. Thompson, Howard C. Nielson, Jr., Haley N. Proctor, COOPER & KIRK, PLLC, Washington, D.C., for Amici Senator Joe Manchin and Representatives Doug Collins, Vicky Hartzler, Jody Hice, Evan Jenkins, Jim Jordan, Mark Meadows, and Alex Mooney. Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Julie Marie Blake, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amicus State of West Virginia; Steve Marshall, Attorney General of Alabama, Montgomery, Alabama, for Amicus State of Alabama; Mark Brnovich, Attorney General of Arizona, Phoenix, Arizona, for Amicus State of Arizona; Leslie Rutledge, Attorney General of Arkansas, Little Rock, Arkansas, for Amicus State of Arkansas; Pamela Jo Bondi, Attorney General of Florida, Tallahassee, Florida, for Amicus State of Florida; Christopher M. Carr, Attorney General of Georgia, Atlanta, Georgia, for Amicus State of Georgia; Douglas S. Chin, Attorney General of Hawaii, Honolulu, Hawaii, for Amicus State of Hawaii; Lawrence G. Wasden, Attorney General of Idaho, Boise, Idaho, for Amicus State of Idaho; Curtis Hill, Attorney General of Indiana, Indianapolis, Indiana, for Amicus State of Indiana; Derek Schmidt, Attorney General of Kansas, Topeka, Kansas, for Amicus State of Kansas; Andy Beshear, Attorney General of Kentucky, Frankfort, Kentucky, for Amicus State of Kentucky; Jeff Landry, Attorney General of Louisiana, Baton Rouge, Louisiana, for Amicus State of Louisiana; Bill Schuette, Attorney General of Michigan, Lansing, Michigan, for Amicus State of Michigan; Timothy C. Fox, Attorney General of Montana, Helena, Montana, for Amicus State of Montana; Adam Paul Laxalt, Attorney General of Nevada, Carson City, Nevada, for Amicus State of Nevada; Wayne Stenehjem, Attorney General of North Dakota, Bismarck, North Dakota, for Amicus State of North Dakota; Michael DeWine, Attorney General of Ohio, Columbus, Ohio, for Amicus State of Ohio; E. Scott Pruitt, Attorney General of Oklahoma, Oklahoma City, Oklahoma, for Amicus State of Oklahoma; Peter F. Kilmartin, Attorney General of Rhode Island, Providence, Rhode Island, for Amicus State of Rhode Island; Alan Wilson, Attorney General of South Carolina, Columbia, South Carolina, for Amicus State of South Carolina; Marty J. Jackley, Attorney General of South Dakota, Pierre, South Dakota, for Amicus State of South Dakota; Ken Paxton, Attorney General of Texas, Austin, Texas, for Amicus State of Texas; Sean D. Reyes, Attorney General of Utah, Salt Lake City, Utah, for Amicus State of Utah; Mark R. Herring, Attorney General of Virginia, Richmond, Virginia, for Amicus Commonwealth of Virginia; Brad D. Schimel, Attorney General of Wisconsin, Madison, Wisconsin, for Amicus State of Wisconsin.

Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.

Reversed and remanded by published opinion. Judge Thacker wrote the opinion, which Judge Wynn joined. Chief Judge Gregory wrote an opinion concurring in part and dissenting in part.

THACKER, Circuit Judge:

In this case we are called upon to decide whether the Establishment Clause is violated when a local government displays and maintains on public property a 40–foot tall Latin cross, established in memory of soldiers who died in World War I. The district court determined that such government action does not run afoul of the Establishment Clause because the cross has a secular purpose, it neither advances nor inhibits religion, and it does not have the primary effect of endorsing religion.

We disagree. The monument here has the primary effect of endorsing religion and excessively entangles the government in religion. The Latin cross is the core symbol of Christianity. And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George's County, Maryland; and maintained with thousands of dollars in government funds. Therefore, we hold that the purported war memorial breaches the "wall of separation between Church and State." Everson v. Bd. of Educ. , 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (internal quotation marks omitted). Accordingly, we reverse and remand.

I.

A.

In 1918, some Prince George's County citizens started raising money to construct a giant cross, in addition to a previously established plaque, to honor 49 World War I soldiers from the county. The private organizers required each donor to sign a pledge sheet recognizing the existence of one god. It stated:

WE, THE CITIZENS OF MARYLAND, TRUSTING IN GOD, THE SUPREME RULER OF THE UNIVERSE, PLEDGE FAITH IN OUR BROTHERS WHO GAVE THEIR ALL IN THE WORLD WAR TO MAKE THE WORLD SAFE FOR DEMOCRACY. THEIR MORTAL BODIES HAVE TURNED TO DUST, BUT THEIR SPIRIT LIVES TO GUIDE US THROUGH LIFE IN THE WAY OF GODLINESS , JUSTICE, AND LIBERTY.

WITH OUR MOTTO, "ONE GOD , ONE COUNTRY AND ONE FLAG," WE CONTRIBUTE TO THIS MEMORIAL CROSS COMMEMORATING THE MEMORY OF THOSE WHO HAVE NOT DIED IN VAIN.

J.A. 1168 (emphasis supplied).¹ Local media described the proposed monument as a "mammoth cross, a likeness of the Cross of Calvary, as described in the Bible."² Id. at 1115. The private organizers held a groundbreaking ceremony on September 28, 1919, at which time the city of Bladensburg owned the land.

In 1922, the private organizers ran out of money and could not finish the project. So, the Snyder–Farmer Post of the American Legion (the "Post") assumed responsibility. At its initial fundraising drive, the Post had a Christian prayer-led invocation. Later that same year, on Memorial Day, the Post held memorial services around the unfinished monument, at which a Christian chaplain led prayer, and those in attendance sang the Christian hymn "Nearer My God to Thee." J.A. 2096. The Post ultimately completed the monument in 1925 and had Christian prayer services at the dedication ceremony, during which only Christian chaplains took part. No other religions were represented.

Upon completion, the monument at issue stood four stories tall in the shape of a Latin cross located in the median of a three-way highway intersection in Bladensburg, Maryland (the "Cross"). Over the years, memorial services continued to occur on a regular basis at the Cross, and those services often included prayer at invocations and benedictions, and speaker-led prayers. Sunday worship services have at times been held at the Cross. Nothing in the record indicates that any of these services represented any faith other than Christianity.

On March 1, 1961, Appellee Maryland–National Capital Park and Planning Commission (the "Commission"), a state entity, obtained title to the Cross and the land on which it sits. According to the Commission, it acquired the Cross and land in part because of safety concerns arising from the placement of the Cross in the middle of a busy traffic median. Therefore, the Commission purports that it assumed responsibility to "maintain[ ], repair[ ], and otherwise car[e] for" the Cross. J.A. 2529. The Commission has since spent approximately $117,000 to maintain and repair the Cross, and in 2008, it set aside an additional $100,000 for renovations.

B.

Today, the 40–foot tall Cross is situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg. The American Legion's symbol—a small star inscribed with "U.S."—is affixed near the top of the Cross, and an American flag flies in the vicinity of the Cross. The Cross sits on a rectangular base, with each side inscribed with one of four words: "valor," "endurance," "courage," and "de...