Nos. 17-1717 & 18-18
IN THE

Supreme Court of the United States
————
THE AMERICAN LEGION, ET AL.,
Petitioners,
v.
AMERICAN HUMANIST ASSOCIATION, ET AL.,
Respondents.
————
MARYLAND-NATIONAL CAPITAL AND PLANNING
COMMISSION,
Petitioner,
v.
AMERICAN HUMANIST ASSOCIATION, ET AL.,
Respondents.
————
On Petitions for Writs of Certiorari
to the United States Court of Appeals
for the Fourth Circuit
————
BRIEF OF AMICI CURIAE RETIRED
GENERALS AND FLAG OFFICERS
SUPPORTING PETITIONERS
————
EDWIN MEESE III
AARON M. STREETT
75TH U.S. ATTORNEY GENERAL
Counsel of Record
214 Massachusetts Ave., N.E.
JONATHAN P. HAVENS
Washington, D.C. 20002
CORNELIUS M. SWEERS
(202) 546-4400
BAKER BOTTS L.L.P.
910 Louisiana St.
Houston, TX 77002
(713) 229-1855

aaron.streett@bakerbotts.com

Counsel for Amici Curiae
Retired Generals and Flag Officers

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

 i
QUESTION PRESENTED
Whether a 93-year-old memorial to the fallen of World
War I is unconstitutional merely because it is shaped like
a cross.

 ii
TABLE OF CONTENTS
Question Presented ....................................................
Interest of Amici Curiae ...........................................
Summary of Argument ..............................................
Argument ....................................................................
I.
Monuments In The Form Of A Cross
Have Long Been Used To Honor
American Soldiers Who Fought And
Died During World War I And Subsequent Wars ...................................................
A. Cross symbols have long been used
as battlefield markers and memorials ........................................................
B. This battlefield history is reflected
in numerous memorials to fallen
soldiers, including the memorial
cross at Bladensburg ...........................
II. Congress Has Recognized The Use Of
Crosses To Honor The Fallen ....................
III. The Court Of Appeals’ Decision
Threatens The Widespread Use Of The
Cross Symbol By The United States
Military To Recognize Valor And Memorialize Sacrifice .......................................
Conclusion ...................................................................

Page
i
1
7
8

8

9

11
13

14
19

 iii
TABLE OF AUTHORITIES
Page
CASES
Buono v. Norton,
371 F.3d 543 (9th Cir. 2004) .................................. 15
Capitol Square Review & Advisory Bd. v.
Pinette,
515 U.S. 753 (1995) ................................................. 17
Salazar v. Buono,
559 U.S. 700 (2010) ............................... 14, 15, 16, 18
Trunk v. City of San Diego,
660 F.3d 1091 (9th Cir. 2011) ................................ 13
Van Orden v. Perry,
545 U.S. 677 (2005) ................................................. 18
Weinbaum v. City of Las Cruces,
541 F.3d 1017 (10th Cir. 2008) .............................. 15
STATUTES
Act of Aug. 14, 2006, Pub. L. No. 109-272,
120 Stat. 770...................................................... 13, 14
Consolidated Appropriations Act, 2005,
Pub. L. No. 108–447, 118 Stat. 2809 (16
U.S.C. § 431 note) .................................................. 14
LEGISLATIVE HISTORY
152 Cong. Rec. H5383 (daily ed. July 19,
2006) ........................................................................ 14
152 Cong. Rec. S8477 (daily ed. Aug. 1,
2006) ........................................................................ 14

 iv
TABLE OF AUTHORITIES—Continued
Page
PUBLICATIONS
American Battle Monuments
Commission, Normandy American
Cemetery and Memorial,
https://www.abmc.gov/sites/default/file
s/publications/Normandy_Booklet_4-82014_508.pdf ..................................................... 10, 11
LTC John C. Cook, Q.M.C., Graves
Registration in the Korean Conflict,
The Quartermaster Review, MarchApril 1953, http://
www.qmmuseum.lee.army.mil/korea/gr
_korea.htm .............................................................. 11
James Edward Peters, Arlington
National Cemetery: Shrine to
America’s Heroes (2000) ....................................... 13
Michael Sledge, Soldier Dead: How We
Recover, Identify, Bury, and Honor
Our Military Fallen (2007) .................................... 10
Colonel Frederick W. Van Duyne, Q. M.
C., Erection of Permanent Headstones
in the American Military Cemeteries in
Europe, The Quartermaster Review,
January-February 1930,
https://www.qmfound.com/article/erecti
on-of-permanent-headstones-in-theamerican-military-cemeteries-ineurope/....................................................................... 9
Major William R. White, Q. M. C., Our
Soldier Dead, The Quartermaster
Review, May-June 1930,
https://www.qmfound.com/article/oursoldier-dead .............................................................. 9

 v
TABLE OF AUTHORITIES—Continued
Page
WEBSITES
Arlington National Cemetery, Argonne
Cross,
http://www.arlingtoncemetery.net/argo
nne-cross.htm ......................................................... 12
Arlington National Cemetery, Canadian
Cross of Sacrifice,
http://www.arlingtoncemetery.mil/Visit
orInformation/MonumentMemorials/C
anadianCross.aspx ................................................. 13
Arlington National Cemetery, Canadian
Cross of Sacrifice,
http://www.arlingtoncemetery.net/cana
dian-cross.htm ........................................................ 12
Arlington National Cemetery, Tomb of
the Unknown Soldier,
http://www.arlingtoncemetery.mil/Visit
orInformation/TombofUnknowns.aspx ............... 12
Germany Awards Military Cross of
Courage, Spiegel Online (July 6, 2009),
http://www.spiegel.de/international/ger
many/0,1518,634601,00.html ................................. 16
Lynn Harold Hahn, Veteran’s Memoirs,
http:// www.koreanwareducator.org/memoirs/hahn/#SearchR
ecovery .................................................................... 11
International Committee of the Red
Cross,
https://www.icrc.org/eng/resources/doc
uments/misc/emblem-history.htm ....................... 17

 vi
TABLE OF AUTHORITIES—Continued
Page
Ministerio de Defensa, Cruz de Guerra,
https://www.boe.es/buscar/act.php?id=
BOE-A-2003-17107 ................................................ 16
Ministry of Defence, Military Cross (MC),
http://www.mod.uk/DefenceInternet/D
efenceFor/Veterans/Medals/MilitaryCr
ossmc.htm ............................................................... 16
Ministry of Defence, Victoria Cross,
http://www.mod.
uk/DefenceInternet/DefenceFor/Veter
ans/Medals/VictoriaCross.htm ............................. 16
National Park Service,
https://www.nps.gov/jame/learn/history
culture/history-of-the-british-flag.htm ................ 17
The Institute of Heraldry, Croix de
Guerre, France,
https://web.archive.org/web/200605161
23717/http://www.tioh.hqda.pentagon.
mil:80/Awards/CROIX%20DE%20GU
ERRE%20FRANCE1.html ................................. 16
The Institute of Heraldry, Distinguished
Flying Cross,
https://web.archive.org/web/200605161
21346/http://www.tioh.hqda.pentagon.
mil:80/Awards/DFC1.html .................................... 15
The Institute of Heraldry, Distinguished
Service Cross,
https://web.archive.org/web/200605161
21120/http://www.tioh.hqda.pentagon.
mil:80/Awards/DSC1.html .................................... 15

 vii
TABLE OF AUTHORITIES—Continued
Page
U.S. Department of Defense, Military
Awards for Valor – Top 3,
https://valor.defense.gov/descriptionof-awards/ ............................................................... 16
WW2 US Medical Research Centre, 607th
Quartermaster Graves Registration
Company, Unit History,
https://www.med-dept.com/unithistories/607th-quartermaster-gravesregistration-company ............................................ 10
MISCELLANEOUS
Letter of Mrs. Frederic W. Bentley to
Dwight F. Davis, Secretary of War, 12
Nov. 1925................................................................. 10

 IN THE

Supreme Court of the United States

————
NOS. 17-1717 & 18-18
————
THE AMERICAN LEGION, ET AL.,
Petitioners,
v.
AMERICAN HUMANIST ASSOCIATION, ET AL.,
Respondents.
————
MARYLAND-NATIONAL CAPITAL AND PLANNING
COMMISSION,
Petitioner,
v.
AMERICAN HUMANIST ASSOCIATION, ET AL.,
Respondents.
————
On Petitions for Writs of Certiorari
to the United States Court of Appeals
for the Fourth Circuit
————
BRIEF OF AMICI CURIAE RETIRED
GENERALS AND FLAG OFFICERS
SUPPORTING PETITIONERS
————
INTEREST OF AMICI CURIAE1
Pursuant to Rule 37.2(a), amici provided timely notice of their intention to file this brief to counsel for all parties. The American Legion and the Maryland National Capital and Planning Commission’s
counsel of record consented to the filing of this brief by filing blanket
consents with the Clerk. Respondent American Humanist Associa1

 2
Amici curiae are retired general and flag officers of
the United States Armed Forces. They are deeply interested in this case because their decades of military leadership have led them to conclude that war memorials
serve a vital interest in honoring our fallen and communicating the severe costs of war to the next generation of
civil and military leaders. Amici took an oath to support
and defend the Constitution and believe that the decision
below misinterprets the First Amendment to inflict grave
harm on important symbols of our nation’s military. In
amici’s judgment, the decision below would threaten the
many war memorials that include a cross or other religious symbols. These war memorials must be preserved
intact to stand as a beacon to the sacrifice and endurance
of our armed forces.
Admiral (Ret.) James A. Lyons, Jr., served in the U.S.
Navy for 36 years. He retired as Commander in Chief of
the U.S. Pacific Fleet, the largest single military command in the world. He has served as Senior U.S. Military Representative to the United Nations and in various
command and staff assignments, including Chief of Staff,
Commander Carrier Group Four; Commanding Officer,
USS Richmond K. Turn (CG-20); and Commanding Officer, USS Charles S. Speery (DD697).
Lieutenant General (Ret.) Michael Gould served in the
U.S. Air Force for 38 years. He was the 18th Superintendent of the U.S. Air Force Academy (2009-2013). Before
that, he served in a number of positions, including as Director of Operations and Plans, U.S. Transportation
Command, Scott Air Force Base, Illinois (2008-2009);

tion’s counsel of record consented to the filing of this brief. In accordance with Rule 37.6, no counsel for any party has authored this
brief in whole or in part, and no person or entity, other than amici or
their counsel, have made a monetary contribution to the preparation
or submission of this brief.

 3
Commander, 2nd Air Force (2005-2008); and Air Force
aide to the President (1990-1992).
Lieutenant General (Ret.) James H. Pillsbury served
in the U.S. Army for 38 years. He retired as the Deputy
Commanding General of the U.S. Army Material Command. He served in various positions throughout his career, including Platoon Leader, Company Commander,
Battalion Commander, and Assistant Division Commander (Support), 10th Mountain Division (Light).
Lieutenant General (Ret.) William G. Boykin served in
the U.S. Army for 36 years. He served 13 years in the
Delta Force and five years as the U.S. Deputy Undersecretary of Defense for Intelligence.
Lieutenant General (Ret.) Benjamin R. Mixon served
in the U.S. Army for 36 years, commanding the U.S. Army Pacific, the 25th Infantry Division, and the MultiNational Division North in Iraq. He has served in or
commanded various units in the 75th Ranger Regiment,
101st Airborne Division, and 82nd Airborne Division.
Vice Admiral (Ret.) William “Dean” Lee served in the
U.S. Coast Guard for more than 35 years. He retired as
Commander, Coast Guard Atlantic Area, Defense Force
East and Department of Homeland Security Joint Task
Force-East. He had seven command assignments and
served at various units on the Atlantic, Pacific, and Gulf
coasts.
Lieutenant General (Ret.) Bruce A. Wright served in
the U.S. Air Force for 35 years. He retired as Commander, U.S. Forces Japan and Commander, 5th Air Force,
Yokota Air Base, Japan. He was a fighter pilot who had
multiple command assignments and served throughout
the world.
Lieutenant General (Ret.) Richard “Tex” Brown
served in the U.S. Air Force for 34 years. He retired as
acting Assistant Vice Chief of Staff, Headquarters, U.S.
Air Force. He commanded an operational fighter squad-

 4
ron, a composite wing and fighter wing, and the Air
Force Personnel Center.
Major General (Ret.) Cecil Richardson served in the
U.S. Air Force for 41 years. He served as a Russian interpreter and intercept operator for six years before being ordained as a chaplain. He served as both Deputy
Air Force Chief of Chaplains (2004-2008) and the 16th
Chief of Chaplains of the U.S. Air Force (2008-2012).
Major General (Ret.) Thomas G. McInerney served in
the U.S. Air Force for 35 years, last serving as Assistant
Vice Chief of Staff, Headquarters U.S. Air Force. He
was a fighter pilot who commanded various units including the 3rd Tactical Fighter Wing, Clark Air Base, Philippines and 313th Air Division, Kadena Air Base, Japan.
Major General (Ret.) Gary L. Harrell served in the
U.S. Army for 35 years, retiring as the Deputy Commanding General of the Army Special Operations Command. He served in various roles and units throughout
his career, including the U.S. Special Forces and 1st Special Forces Operational Detachment – Delta.
Major General (Ret.) Brian I. Geehan served in the
U.S. Army for 34 years. He retired as the Director of
Logistics, U.S. Central Command and held various commands, including Commander, U.S. Army Special Operations Support Command, Ft. Bragg, North Carolina.
Major General (Ret.) Felix Dupre served in the U.S.
Air Force for over 33 years. He retired as Commander,
Air Force Operational Test and Evaluation Center. During his career, he commanded an operations support
squadron, a fighter squadron, a fighter operations group,
and two fighter wings.
Major General (Ret.) Jack Catton, Jr. served in the
U.S. Air Force for over 31 years. A command pilot and
instructor, General Catton logged over 2,650 flying
hours in single-seat fighter aircraft. He commanded at
the squadron, group, and wing level with tours in the con-

 5
tinental U.S., Europe, and the Pacific. In addition to his
operational assignments, he served on the Air Staff,
NATO Staff, Joint Staff, and as Inspector General of Pacific Air Forces. General Catton’s Air Force career culminated at Air Combat Command as the Director of Requirements, where he was responsible for the definition
of operational requirements for the Combat Air Forces
and the oversight of 260 modernization programs.
Major General (Ret.) Robert F. Dees served 31 years
in the U.S. Army in a wide variety of command and staff
positions, culminating in assignments as Assistant Division Commander for Operations, 101st Airborne Division
(Air Assault) and Commander, Second Infantry Division,
United States Forces Korea.
Major General (Ret.) Paul Vallely served in the U.S.
Army for 30 years, retiring as the Deputy Commanding
General for the U.S. Army Pacific. He served two combat tours in Vietnam and served in many overseas theaters, including Europe and the Pacific Rim countries.
Major General (Ret.) William K. Suter served in the
U.S. Army for nearly 30 years, ending his career as acting Judge Advocate General for the U.S. Army. After
retiring, he served as Clerk of the Supreme Court of the
United States from 1991-2013.
Major General (Ret.) Vernon B. Lewis, Jr. served in
the U.S. Army for 29 years. He served in various roles
and units, including three tours in Korea and Vietnam
and worked as the Deputy Chief of Staff for Operations
in the Pentagon.
Brigadier General (Ret.) James Walker served in the
U.S. Marine Corps for 33 years, holding various command and staff positions around the world. His final military assignment was in the Pentagon as the senior military attorney for the Marine Corps.
Brigadier General (Ret.) Orwyn Sampson served in
the U.S. Air Force for 32 years. He spent 27 of those

 6
years at the U.S. Air Force Academy, where he was involved in all four of the “pillar” mission elements: Instructor and Coach in the Department of Athletics; Assistant AOC and Member of the Military Review Committee with the Commandant of Cadets; Professor and
Researcher on the Faculty; and Officer Sponsor of the
Cadet Fellowship of Christian Athletes.
Brigadier General (Ret.) Dana Helen Born served in
the U.S. Air Force for 30 years. Her last assignment was
as Dean of the Faculty, U.S. Air Force Academy. She
served in various roles and units, including serving in Afghanistan in support of Operation Enduring Freedom
and as a permanent professor of the U.S. Air Force
Academy’s Behavioral Sciences and Leadership Department.
Brigadier General (Ret.) David B. Warner served in
the U.S. Air Force for 30 years, retiring as the Director,
Communications and Information, Chief Information Officer, Headquarters Air Force Space Command, Peterson Air Force Base, Colorado. He commanded at the
squadron and group levels.
Brigadier General (Ret.) Richard F. Abel served in the
U.S. Air Force for 29 years, including as Director of the
U.S. Air Force Academy’s Admissions Liaisons Office
(1972-1973); Director of Public Affairs, U.S. Pacific
Command (1975-1978); Special Assistant to the Chairman
of the Joint Chiefs of Staff (1978-1980); and Director of
Public Affairs, Office of the U.S. Secretary of the Air
Force (1980-1985).
Brigadier General (Ret.) Gary M. Jones served in the
U.S. Army for over 28 years, including as Commander of
the U.S. Army Special Forces Command, Deputy Director of the Central Intelligence Agency’s CounterTerrorism Center, and Commander of the 3rd Special
Forces Group (Airborne).

 7
Brigadier General (Ret.) David K. “Bob” Edmonds
served in the U.S. Air Force for over 28 years, retiring as
Deputy Director for Operations, Operations Team Two,
National Military Command Center. He served in numerous flying positions, both as an instructor pilot and
operations officer. He led 45 combat missions with the
53rd Tactical Fighter Squadron during Operation Desert
Storm.
SUMMARY OF ARGUMENT
Like countless grave markers and memorials to veterans throughout our Nation and overseas, and like the
simple wooden crosses that first memorialized the final
sacrifice made by thousands of soldiers, the Bladensburg
WWI Memorial uses a cross to reflect the respect and
gratitude due our honored dead. History establishes that
the military has long used a cross as a nonsectarian symbol of sacrifice. Crosses routinely were used as makeshift burial markers for soldiers who died during the battles of World War I. Across the battlefields of Europe,
two wooden beams would identify and dignify the temporary graves of thousands of soldiers. As the war came to
its close, those touched by the conflicts saw fit to continue
to use the symbol of a cross in tens of thousands of headstones and in larger memorials, including the Memorial
at Bladensburg.
The meaning of the Bladensburg WWI Memorial cannot be understood apart from this broader history of the
cross symbol as a nonsectarian sign of military remembrance. When placed in historical context alongside the
tens of thousands of crosses that have commemorated
our fallen for more than a century, the nature of the Memorial is clear. From the time it was erected—seven
years after the World War I armistice was signed—
through today, the Memorial has served as a nonsectarian symbol of sacrifice honoring the forty-nine men of
Prince George’s County who fell in the war.

 8
The court of appeals discounted the history of crosses
as symbols of military sacrifice and effectively ruled that
a ninety-year-old piece of that history must be either
razed or defaced. By erroneously ascribing a predominantly religious message to the Memorial, the court of
appeals promoted the kind of social conflict the Establishment Clause seeks to avoid. As long as the decision
stands, it will endanger hundreds or even thousands of
similar monuments and memorials by imputing a sectarian meaning to a universally recognized symbol of military death and sacrifice.
ARGUMENT
I. MONUMENTS IN THE FORM OF A CROSS HAVE LONG
BEEN USED TO HONOR AMERICAN SOLDIERS WHO
FOUGHT AND DIED DURING WORLD WAR I AND SUBSEQUENT WARS
To assess the message the Bladensburg WWI Memorial conveys, the Court must consider the purpose cross
symbols served on the battlefields of World War I, in
subsequent wars, and in the memorials that honor the
brave soldiers who gave their lives in those conflicts. The
terrors of modern warfare and the large-scale loss of life
that resulted from those conflicts created a new need to
bury and commemorate fallen American soldiers overseas. A simple wooden cross was commonly used to hastily identify and solemnize the place where a soldier had
been laid to rest—often the very battlefield where he had
fallen. As crosses became widely used overseas as a
symbol honoring our fallen soldiers, it became a common
symbol of that sacrifice in memorials erected back home.
The Bladensburg WWI Memorial, dedicated shortly after the WWI Armistice Agreement was signed, was one
of these memorials, created to honor the forty-nine men
of Prince George’s County who gave their lives for their
country. A proper understanding of the history of these
memorials should guide the Court.

 9
A. Cross symbols have long been used as battlefield
markers and memorials
During World War I, the families of many fallen soldiers preferred that their loved ones remain overseas
where they had given their lives.2 To accommodate these
families’ wishes, the United States acquired several sites
in Europe for the creation of cemeteries that would also
serve as fitting memorials for those who had died.3 While
the War Department solicited assistance in designing the
final resting places for soldiers, a wooden cross or the
Star of David marked their temporary graves.4 In 1922,
the War Department approved a plan to replace these
temporary markers with rectangular marble slabs with
rounded tops similar to the headstones used in many military cemeteries in the United States. But popular opposition arose to replacing the symbols of sacrifice that had
marked the soldiers’ temporary graves for over five
years.5 Ultimately, the War Department replaced its
former design with marble headstones that resembled
the wooden crosses and stars that soldiers had first used
to commemorate their fallen brothers. When the cemeteries were completed, each grave was marked by either
a cross or Star of David. Soldiers who were neither
Christian nor Jewish were memorialized with a cross.6
The Secretary of War was informed in 1925 that the
Major William R. White, Q. M. C., Our Soldier Dead, The Quartermaster Review, May-June 1930, https://www.qmfound.com
/article/our-soldier-dead.
3
Colonel Frederick W. Van Duyne, Q. M. C., Erection of Permanent
Headstones in the American Military Cemeteries in Europe, The
Quartermaster Review, January-February 1930, https://www
.qmfound.com/article/erection-of-permanent-headstones-in-theamerican-military-cemeteries-in-europe/.
4
Ibid.
5
Ibid.
6
Ibid.
2

 10
families of some Reformed Jews preferred “no distinction be made between them and their Christian comrades” and requested that their sons be buried underneath a cross to emphasize their shared cause and sacrifice.7 A cross, then, was not used solely to commemorate
the sacrifice of Christian soldiers.
Crosses continued to be used as simple and powerful
symbols of sacrifice during World War II. On June 8,
1944—two days after the D-Day landings on the beaches
of Normandy—the U.S. Army established the temporary
United States Military Cemetery at St. Laurent-sur-Mer
to bury the thousands of men who died during the daring
and costly invasion.8 A wooden cross marked each grave
until it was later replaced with a marble Star of David for
soldiers of the Jewish faith or a marble Latin cross for all
others.9 Today over 9,000 such markers cover the Normandy American Cemetery and Memorial, serving as a

Mrs. Frederic W. Bentley to Dwight F. Davis, Secretary of War, 12
Nov. 1925, quoted in Michael Sledge, Soldier Dead: How We Recover, Identify, Bury, and Honor Our Military Fallen 205 (2007).
8
WW2 US Medical Research Centre, 607th Quartermaster Graves
Registration
Company,
Unit
History,
https://www.meddept.com/unit-histories/607th-quartermaster-graves-registrationcompany (last visited July 24, 2018). “A few temporary US military
cemeteries initially set up included both American and German dead,
at first in mixed groups (with white wooden crosses identifying United States military personnel and black crosses for the Germans * * *), later in distinctive fields, and finally in separate cemeteries. Temporary markers were only gradually replaced by permanent crosses on 6 July 1944.” Ibid.
9
See ibid. for a picture of the wooden crosses at the temporary cemetery; see also American Battle Monuments Commission, Normandy
American Cemetery and Memorial, at 10, https://www.abmc
.gov/sites/default/files/publications/Normandy_Booklet_4-8-2014_508
.pdf (last visited July 24, 2018).
7

 11
powerful reminder of the breadth and depth of the sacrifice made by all who served in World War II.10
During the Korean War, the United States did not
create overseas cemeteries, but instead made great efforts to identify and transport the remains of fallen service members back home while the conflict was still raging.11 The Graves Registration Division of the United
States Army sent teams of men into the field to locate the
remains of their fellow soldiers, many of whom were
hastily buried in graves marked by crosses or other
markers.12 The temporary grave markers that were not
destroyed by weather, battle, or the enemy greatly aided
the Graves Registration personnel in their task of identifying the deceased and returning them home for a burial
befitting their sacrifice.13
B. This battlefield history is reflected in numerous
memorials to fallen soldiers, including the memorial cross at Bladensburg
During and immediately following the battles of World
War I, soldiers who survived the carnage deemed crosses
fitting symbols to commemorate the sacrifices and mark
the resting places of their brothers-in-arms. The families
and loved ones of the fallen viewed the widely used symSee American Battle Monuments Commission, Normandy American Cemetery and Memorial at 7, https://www.abmc.gov/sites
/default/files/publications/Normandy_Booklet_4-8-2014_508.pdf (last
visited July 24, 2018).
11
LTC John C. Cook, Q.M.C., Graves Registration in the Korean
Conflict, The Quartermaster Review, March-April 1953, http://www.
qmmuseum.lee.army.mil/korea/gr_korea.htm.
12
Ibid.; Lynn Harold Hahn, Veteran’s Memoirs, http://
www.koreanwar-educator.org/memoirs/hahn/#SearchRecovery (last
visited July 24, 2018).
13
LTC John C. Cook, Q.M.C., Graves Registration in the Korean
Conflict, The Quartermaster Review, March-April 1953, http://
www.qmmuseum.lee.army.mil/korea/gr_korea.htm.
10

 12
bol in a similar light. While the cross symbol undoubtedly held religious meaning for many, its primary purpose
was to identify and solemnize the place where each soldier was laid to rest. When the Bladensburg WWI Memorial was dedicated to the forty-nine soldiers of Prince
George’s County, Maryland who died in the war, any citizen who had been touched by the conflicts would have
immediately understood why a cross was chosen to commemorate that sacrifice.
Many other longstanding memorials to fallen soldiers
have incorporated a cross. The Argonne Cross in Arlington National Cemetery, for example, rests among pine
trees representing the Argonne Forest where American
servicemen gave their lives during World War I.14 The
Canadian Cross of Sacrifice, also at Arlington, dominates
its surroundings with a bronze sword affixed to a 24-foot
gray granite cross.15 It sits directly across the road from
the Arlington Memorial Amphitheater, visited by thousands each day who go to honor the Tomb of the Unknowns, which bears the inscription, “Here Rests In
Honored Glory An American Soldier Known But To
God.”16 The Cross of Sacrifice honors those Americans
who joined the Canadian Armed Forces to fight in World
War I before the United States entered the war. Dedicated in 1927 on Armistice Day, the monument was later
modified to honor those who served in World War II and
See Arlington National Cemetery, Argonne Cross,
http://www.arlingtoncemetery.net/argonne-cross.htm (last visited
July 24, 2018) (reflecting that the base of the cross contains the inscription “IN MEMORY OF OUR MEN IN FRANCE 1917-1918”).
15
See Arlington National Cemetery, Canadian Cross of Sacrifice,
http://www.arlingtoncemetery.net/canadian-cross.htm (last visited
July 24, 2018).
16
See Arlington National Cemetery, Tomb of the Unknown Soldier,
http://www.arlingtoncemetery.mil/VisitorInformation/TombofUnkno
wns.aspx (last visited July 24, 2018).
14

 13
the Korean War. In addition to these monuments, 114
Civil War monuments include a cross, including two war
memorial crosses at Gettysburg. Trunk v. City of San
Diego, 660 F.3d 1091, 1100 (9th Cir. 2011) (Bea, J., dissenting from denial of rehearing en banc).
II. Congress Has Recognized The Use Of Crosses To
Honor The Fallen
A. Congress has acted to preserve war-memorial
crosses, recognizing their vital role in honoring military
sacrifice. For example, Congress found that the Mt.
Soledad Veterans Memorial in La Jolla, California—
which like the Bladensburg WWI Memorial contains a
prominent cross—serves as a “tribute to the members of
the United States Armed Forces who sacrificed their
lives in the defense of the United States.” See Act of
Aug. 14, 2006, Pub. L. No. 109-272, § 1(1), 120 Stat. 770.
Congress observed that the “Memorial was dedicated on
April 18, 1954, as ‘a lasting memorial to the dead of the
First and Second World Wars and the Korean conflict’
and now serves as a memorial to American veterans of all
wars, including the War on Terrorism.” § 1(2), 120 Stat.
770. And it emphasized that the “United States has a
long history and tradition of memorializing members of
the Armed Forces who die in battle with a cross * * * *”
§ 1(3), 120 Stat. 770.
Congress understood that the “patriotic and inspirational symbolism of the Mt. Soledad Veterans Memorial
provides solace to the families and comrades of the veterans it memorializes.” § 1(4), 120 Stat. 770. Congress
had previously designated the Memorial “as a National
Veterans Memorial” because of its historical significance
17

See Arlington National Cemetery, Canadian Cross of Sacrifice,
http://www.arlingtoncemetery.mil/VisitorInformation/MonumentMe
morials/CanadianCross.aspx (last visited July 24, 2018), citing James
Edward Peters, Arlington National Cemetery: Shrine to America’s
Heroes (2000).
17

 14
as a tribute to our veterans. § 1(5), 120 Stat. 770; see
Consolidated Appropriations Act, 2005, Pub. L. No. 108–
447, div. J, § 116(a), 118 Stat. 2809 (16 U.S.C. § 431 note)
(“The Mt. Soledad Veterans Memorial * * * is hereby
designated as a national memorial honoring veterans of
the United States Armed Forces.”).
The legislation requiring federal acquisition of the Mt.
Soledad Memorial received overwhelming support from
Congress, the Executive Branch, veterans’ groups, and
millions of Americans. 152 Cong. Rec. H5383, H5422–
H5426 (daily ed. July 19, 2006). It passed the House of
Representatives by a 349-74 vote. Id. at H5433–H5434.
It was unanimously adopted by the Senate. 152 Cong.
Rec. S8477, S8550 (daily ed. Aug. 1, 2006).
B. This Court’s decision in Salazar v. Buono, 559 U.S.
700 (2010) reflects another example of Congress’s recognition that a cross may appropriately be used as a war
memorial. In 1934, WWI veterans erected a simple white
cross atop a granite outcrop known as Sunrise Rock in
the Mojave National Preserve “as a memorial to soldiers
who died in [WWI].” Salazar, 559 U.S. at 705–07 (plurality). In 2002, Congress designated the Sunrise Memorial
as “a national memorial commemorating United States
participation in World War I and honoring the American
veterans of that war.” Id. at 709. “[I]t is noteworthy that
Congress, in which our country’s religious diversity is
well represented, passed this law by overwhelming majorities: 95–0 in the Senate and 407–15 in the House.” Id.
at 727 (Alito, J., concurring).
III. The Court Of Appeals’ Decision Threatens The
Widespread Use Of The Cross Symbol By The
United States Military To Recognize Valor And
Memorialize Sacrifice
The court of appeals rested its decision largely on its
characterization of the Bladensburg cross as an impermissible “sectarian” or “religious” symbol that necessari-

 15
ly projects a message of religious endorsement. In doing
so, the court of appeals rejected evidence of the U.S. military’s historical use of a cross to honor and commemorate
soldiers and focused monomaniacally on crosses’ role as
“‘the preeminent symbol of Christianity.’” Pet. App. 17a–
20a (quoting Buono v. Norton, 371 F.3d 543, 545 (9th Cir.
2004)).18 The court of appeals’ persistent blindness to the
physical and historical context of the Memorial cross
threatens to disrupt the U.S. military’s longstanding use
of crosses to honor valor and commemorate the fallen.
A. The history recounted above shows that crosses
are frequently used by the military in a way that “need
not be taken as a statement of governmental support for
sectarian beliefs.” Salazar, 559 U.S. at 719 (plurality).
Moreover, in the United States and around the world, a
cross continues to be incorporated into dozens of honorific military medals. The United States military recognizes especially meritorious conduct with the Distinguished
Service Cross,19 the Distinguished Flying Cross,20 the

See also Pet. App. 2a (“The Latin cross is the core symbol of Christianity.”); id. at 18a–19a n.9 (“The Latin cross ‘reminds Christians of
Christ’s sacrifice for His people,’ and ‘it is unequivocally a symbol of
the Christian faith.”) (quoting Weinbaum v. City of Las Cruces, 541
F.3d 1017, 1022 (10th Cir. 2008)); id. at 18a (“While the Latin cross
may generally serve as a symbol of death and memorialization, it
only holds value as a symbol of death and resurrection because of its
affiliation with the crucifixion of Jesus Christ.”); id. at 27a (“Christianity is singularly—and overwhelmingly—represented.”).
19
See The Institute of Heraldry, Distinguished Service Cross,
https://web.archive.org/web/20060516121120/http://www.tioh.hqda.pe
ntagon.mil:80/Awards/DSC1.html (last visited July 24, 2018).
20
See The Institute of Heraldry, Distinguished Flying Cross,
https://web.archive.org/web/20060516121346/http://www.tioh.hqda.pe
ntagon.mil:80/Awards/DFC1.html (last visited July 24, 2018).
18

 16
Navy Cross, and the Air Force Cross.22 British, Australian, and Canadian soldiers may be awarded the Military Cross23 and, for acts of most conspicuous bravery,
the Victoria Cross.24 The German Bundeswehr bestows
the Honor Cross for bravery.25 The Spanish military
awards the Cruz de Guerra.26 And the French military
awards the famous Croix de Guerre.27
B. Used in the military context, a cross communicates
messages of universal significance that are not limited to
a specific religion. When incorporated into medals, a
cross communicates that its wearer has performed courageous acts worthy of honor. When erected as part of a
memorial to America’s veterans, it serves 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.” Salazar, 559 U.S. at 721
(plurality). Far from communicating a purely or even
21

See U.S. Department of Defense, Military Awards for Valor – Top
3, https://valor.defense.gov/description-of-awards/ (last visited July
26, 2018).
22
Ibid.
23
See Ministry of Defence, Military Cross (MC), http://www
.mod.uk/DefenceInternet/DefenceFor/Veterans/Medals/MilitaryCro
ssmc.htm (last visited July 24, 2018).
24
See Ministry of Defence, Victoria Cross, http://www.mod.uk
/DefenceInternet/DefenceFor/Veterans/Medals/VictoriaCross.htm
(last visited July 24, 2018).
25
See Germany Awards Military Cross of Courage, Spiegel Online
(July 6, 2009), http://www.spiegel.de/international/germany/0,1518
,634601,00.html.
26
See Ministerio de Defensa, Cruz de Guerra, https://www
.boe.es/buscar/act.php?id=BOE-A-2003-17107 (last visited July 24,
2018).
27
See The Institute of Heraldry, Croix de Guerre, France,
https://web.archive.org/web/20060516123717/http://www.tioh.hqda.pe
ntagon.mil:80/Awards/CROIX%20DE%20GUERRE%20FRANCE1
.html (last visited July 24, 2018).
21

 17
predominantly religious message, a cross used as part of
a veterans’ memorial “evokes thousands of small crosses
in foreign fields marking the graves of Americans who
fell in battles, battles whose tragedies are compounded if
the fallen are forgotten.” Ibid.
That a cross may communicate universal or even secular messages is not unusual or unexpected. In other contexts, a cross communicates messages that bear little to
no religious meaning. The International Committee of
the Red Cross initially adopted a red cross on a white
background in 1863 because the symbol was “simple,
identifiable from a distance, known to everyone and identical for friend and foe.”28 Worn as jewelry, a cross is
frequently nothing more than a hollow fashion statement.
Sewn into a flag, a cross communicates any number of
political and nationalistic messages.29 Set ablaze by
members of the Ku Klux Klan, a cross communicates racial intolerance and hatred. See Capitol Square Review
& Advisory Bd. v. Pinette, 515 U.S. 753, 770 (1995)
(Thomas, J., concurring) (noting that erection of a cross
by the Ku Klux Klan “is a political act, not a Christian
one”). A cross means different things depending on
physical and historical context.
C. The court of appeals rejected the long and storied
history of the use of crosses as non-sectarian symbols of
valor and military sacrifice. Instead, the Fourth Circuit
concluded that “the Cross endorses Christianity—not
International Committee of the Red Cross, https://www.icrc
.org/eng/resources/documents/misc/emblem-history.htm (last visited
on July 18, 2018).
29
The flag of the United Kingdom, the Union Jack, is actually a combination of three crosses: the cross of Saint George, patron saint of
England; the cross saltire of Saint Andrew, patron saint of Scotland;
and the cross saltire of Saint Patrick, patron saint of Ireland. The
National Park Service, https://www.nps.gov/jame/learn/history
culture/history-of-the-british-flag.htm (last visited July 18, 2018).
28

 18
only above all other faiths, but also to their exclusion.”
Pet. App. 26a.
In effect, the Fourth Circuit concluded that a cross is
necessarily a sectarian symbol, regardless of context,
and that “the display and maintenance of the Cross violates the Establishment Clause.” Id. at 29a. That categorical approach is contrary to this Court’s direction in
Van Orden v. Perry that the message conveyed by a religious symbol displayed on public grounds must be ascertained, in the first instance, from how the symbol is used
in light of its surrounding context and history. 545 U.S.
677, 701 (2005) (Breyer, J., concurring in the judgment).
The court of appeals turned Van Orden on its head by
looking to use and context only as factors that failed to
ameliorate what the court found to be the inherently sectarian, and constitutionally toxic, message communicated
by the Bladensburg Memorial cross.
D. The decision below is an affront to generations of
soldiers, their families, and patriotic Americans. As with
the memorial cross to World War I veterans that stands
alone in the Mojave Desert, the government cannot remove or deface the Bladensburg cross “without conveying disrespect for those the cross [is] honoring.” Salazar,
559 U.S. at 716 (plurality). Amici are part of a long line
of men and women who intimately understand the sacrifice recognized by war memorials. Tearing down the
Memorial cross would be “viewed by many as a sign of
disrespect for the brave soldiers whom the cross was
meant to honor.” Id. at 726 (Alito, J., concurring); see
Van Orden, 545 U.S. at 704 (Breyer, J., concurring in the
judgment). It would erode the collective memory of the
brave soldiers who answered the call to duty in World
War I. And it would perversely teach the Nation that a
traditional means of commemorating those who died defending the Constitution is repugnant to the very Constitution they died to defend. Amici retired general and

 19
flag officers urge the Court to forestall that tragedy and
correct the court of appeals’ stilted view of the First
Amendment.
CONCLUSION
The petitions for writs of certiorari should be granted.
Respectfully submitted.
EDWIN MEESE III
75TH U.S. ATTORNEY GENERAL

214 Massachusetts Ave.,
N.E.
Washington, D.C. 20002
(202) 546-4400

AARON M. STREETT
Counsel of Record
JONATHAN P. HAVENS
CORNELIUS M. SWEERS
BAKER BOTTS L.L.P.
910 Louisiana St.
Houston, TX 77002
(713) 229-1234

aaron.streett@bakerbotts.com

Counsel for Amici Curiae
Retired Generals and Flag Officers
July 2018