No. 18-____
IN THE

Supreme Court of the United States
_________
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING
COMMISSION,
Petitioner,
v.
AMERICAN HUMANIST ASSOCIATION, et al.,
Respondents.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
ADRIAN R. GARDNER
WILLIAM C. DICKERSON
TRACEY A. HARVIN
MARYLAND-NATIONAL
CAPITAL PARK AND
PLANNING COMMISSION
6611 Kenilworth Ave.,
Suite 200
Riverdale, MD 20737

NEAL KUMAR KATYAL
Counsel of Record
MITCHELL P. REICH
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
neal.katyal@hoganlovells.com
Counsel for Petitioner

 QUESTION PRESENTED
Whether the Establishment Clause requires the
removal or destruction of a 93-year-old memorial to
American servicemen who died in World War I solely
because the memorial bears the shape of a cross.

(i)

 ii
PARTIES TO THE PROCEEDING
The Maryland-National Capital Park and Planning
Commission, petitioner on review, was the defendant-appellee below.
The American Humanist Association, Steven Lowe,
Fred Edwords, and Bishop McNeill, respondents on
review, were the plaintiffs-appellants below.
The American Legion, The American Legion Department of Maryland, and The American Legion
Colmar Manor Post 131, respondents on review,
intervened as defendants in the District Court and
were defendant-appellees in the Court of Appeals.

 iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...........................................i
PARTIES TO THE PROCEEDING ............................ii
TABLE OF AUTHORITIES........................................ v
OPINIONS BELOW....................................................1
JURISDICTION ..........................................................2
CONSTITUTIONAL PROVISIONS INVOLVED ......2
INTRODUCTION........................................................2
STATEMENT ..............................................................5
A.

Factual Background .................................5

B.

Procedural History ...................................7

REASONS FOR GRANTING THE PETITION ....... 12
I.

THE FOURTH CIRCUIT’S
DECISION IS PLAINLY WRONG ................ 12

II.

THE FOURTH CIRCUIT’S
DECISION DEEPENS MULTIPLE
CIRCUIT SPLITS........................................... 21
A.

The Circuits Are Divided On
Whether The Cross May Ever
Serve As A Secular Symbol Of
Commemoration ..................................... 22

B.

The Circuits’ Division Rests
On Several Basic Disagreements As To The Meaning Of
This Court’s Establishment
Clause Precedents .................................. 27

 iv
TABLE OF CONTENTS—Continued
Page
1.

The circuits disagree on
whether a commemorative
cross necessarily conveys a
religious message ........................... 27

2.

The circuits disagree on
what knowledge to attribute
to the “reasonable observer”........... 29

3.

The circuits disagree on the
relevance of a monument’s
longevity and history...................... 31

III. THE QUESTION PRESENTED IS
IMPORTANT .................................................. 33
CONCLUSION .......................................................... 36
APPENDIX
APPENDIX A—Fourth Circuit’s Opinion (Oct. 18, 2017) ............................................. 1a
APPENDIX B—District Court’s Opinion
(Nov. 30, 2015)................................................. 53a
APPENDIX C—Order and Opinions
Denying Rehearing En Banc (Mar. 1,
2018) ................................................................ 86a

 v
TABLE OF AUTHORITIES
Page(s)
CASES:
ACLU Nebraska Found. v. City of
Plattsmouth,
419 F.3d 772 (8th Cir. 2005) ............................. 32
Aguilar v. Felton,
473 U.S. 402 (1985) ........................................... 21
Am. Atheists, Inc. v. Davenport,
637 F.3d 1095 (10th Cir. 2010) ................. passim
Am. Atheists, Inc. v. Port Auth. of N.Y. &
N.J.,
760 F.3d 227 (2d Cir. 2014)................... 26, 27, 28
Ams. United for Separation of Church &
State v. City of Grand Rapids,
980 F.2d 1538 (6th Cir. 1992) ........................... 30
Briggs v. Mississippi,
331 F.3d 499 (5th Cir. 2003) ....................... 26, 27
Buono v. Kempthorne,
502 F.3d 1069 (9th Cir. 2007) ........................... 23
Buono v. Norton,
371 F.3d 543 (9th Cir. 2004) ......................... 8, 23
Capitol Square Review & Advisory Bd. v.
Pinette,
515 U.S. 753 (1995) ........................................... 19
Carpenter v. City & Cty. of San Francisco,
93 F.3d 627 (9th Cir. 1996) ............................... 31
Chabad-Lubavitch of Ga. v. Miller,
5 F.3d 1383 (11th Cir. 1993) ............................. 30

 vi
TABLE OF AUTHORITIES—Continued
Page(s)
Cty. of Allegheny v. Am. Civil Liberties
Union,
492 U.S. 573 (1989) ..................................... 13, 15
Eugene Sand & Gravel, Inc. v. City of
Eugene,
558 P.2d 338 (Or. 1976) .................................... 22
Freethought Soc’y of Greater Phil. v.
Chester Cty.,
334 F.3d 247 (3d Cir. 2003)............................... 30
Green v. Haskell Cty. Bd. of Comm’rs,
568 F.3d 784 (10th Cir. 2009) ........................... 29
Lee v. Weisman,
505 U.S. 577 (1992) ................................. 3, 11, 18
Lynch v. Donnelly,
465 U.S. 668 (1984) ................................... passim
Mount Soledad Mem’l Ass’n v. Trunk,
132 S. Ct. 2535 (2012) ....................................... 12
Murray v. City of Austin,
947 F.2d 147 (5th Cir. 1991) ................. 26, 29, 31
Rowan Cty. v. Lund,
No. 17-565, 2018 WL 3148570 (U.S.
June 28, 2018) ................................................... 35
Salazar v. Buono,
559 U.S. 700 (2010) ................................... passim
Separation of Church & State Comm. v.
City of Eugene,
93 F.3d 617 (9th Cir. 1996) ................... 22, 23, 35

 vii
TABLE OF AUTHORITIES—Continued
Page(s)
Staley v. Harris Cty.,
461 F.3d 504 (5th Cir. 2006) ............................. 31
Town of Greece v. Galloway,
134 S. Ct. 1811 (2014) ....................................... 20
Trunk v. City of San Diego,
629 F.3d 1099 (9th Cir. 2011) ................... passim
Trunk v. City of San Diego,
660 F.3d 1091 (9th Cir. 2011) ............... 24, 32, 34
Utah Highway Patrol Ass’n v. Am. Atheists,
Inc.,
132 S. Ct. 12 (2011) ..................................... 30, 35
Van Orden v. Perry,
545 U.S. 677 (2005) ................................... passim
Weinbaum v. City of Las Cruces,
541 F.3d 1017 (10th Cir. 2008) ......................... 28
STATUTE:
28 U.S.C. § 1254(1) ...................................................2
CONSTITUTIONAL PROVISIONS:
U.S. Const. amend. I ................................................2
U.S. Const. amend. XIV, § 1 .....................................2
OTHER AUTHORITIES:
Cape Henry Memorial Cross, Nat’l Park
Serv., https://www.nps.gov/came/capehenry-memorial-cross.htm (last visited
June 28, 2018) ................................................... 34
John McCrae, In Flanders Fields (1915),
reprinted in In Flanders Fields and

 viii
TABLE OF AUTHORITIES—Continued
Page(s)
Other Poems (G.P. Putnam’s Sons ed.,
1919) ....................................................................5

 IN THE

Supreme Court of the United States
_________
No. 18_________
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING
COMMISSION,
Petitioner,
v.
AMERICAN HUMANIST ASSOCIATION, et al.,
Respondents.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
The Maryland-National Capital Park and Planning
Commission (the Commission) respectfully petitions
for a writ of certiorari to review the judgment of the
Fourth Circuit in this case.
OPINIONS BELOW
The Fourth Circuit’s opinion (App. 1a-52a) is reported at 874 F.3d 195. The District Court’s opinion
(App. 53a-85a) is reported at 147 F. Supp. 3d 373.
The Fourth Circuit’s order and opinions denying
rehearing en banc (App. 86a-105a) are reported at
891 F.3d 117.

(1)

 2
JURISDICTION
The Fourth Circuit entered judgment on October
18, 2017. Petitioner filed a timely petition for rehearing en banc, which was denied on March 1, 2018.
On May 9, 2018, the Chief Justice extended the time
within which to file a petition for a writ of certiorari
to and including June 29, 2018. See No. 17A1175.
This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
The Establishment Clause of the First Amendment,
U.S. Const. amend. I, provides:
Congress shall make no law respecting an
establishment of religion.
The Due Process Clause of the Fourteenth
Amendment, U.S. Const. amend. XIV, § 1,
provides:
[N]or shall any State deprive any person
of life, liberty, or property, without due
process of law.
INTRODUCTION
In this case, the Fourth Circuit ordered the removal
or destruction of a 93-year-old memorial to the
veterans of Prince George’s County, Maryland, who
perished in World War I, solely because the memorial bears the shape of a Latin cross. In an opinion
that ultimately splintered the Fourth Circuit 8-6, the
panel reasoned that the Latin cross is the “preeminent symbol of Christianity.” App. 20a. Accordingly,
it concluded, virtually no amount of secular content,
context, and history—including the monument’s
exclusively secular dedication and inscriptions; its

 3
placement alongside other secular war memorials in
Veterans Memorial Park; its consistent use as a site
for patriotic events for nearly a century; and the
history of the Latin cross as a symbol of the World
War I dead—could render the memorial a nonsectarian symbol of commemoration. App. 20a-31a.
That decision is, to be blunt, grievously incorrect.
This Court has time and again made clear that the
Establishment Clause “does not require eradication
of all religious symbols in the public realm.” Salazar
v. Buono, 559 U.S. 700, 718 (2010) (plurality opinion)
(citing Lee v. Weisman, 505 U.S. 577, 598 (1992)).
Rather, this Court has recognized that passive
displays—particularly displays that have stood
without challenge for decades—may constitutionally
employ religious symbols in order to convey a predominantly nonreligious message. See Lynch v.
Donnelly, 465 U.S. 668, 678-679 (1984). It is difficult
to conceive of a monument whose content, context,
and history more clearly convey a nonsectarian
message of remembrance and respect than this one.
The Fourth Circuit’s holding that the mere use of a
cross tars this memorial as an unconstitutional
establishment of religion “has no place in our Establishment Clause traditions,” and will engender the
very sort of “religiously based divisiveness that the
Establishment Clause seeks to avoid.” Van Orden v.
Perry, 545 U.S. 677, 704 (2005) (Breyer, J., concurring).
The Fourth Circuit’s decision also continues a worrying trend in the lower courts. Despite this Court’s
pronouncements, several circuits, including the
Ninth, the Tenth, and the Fourth, have adopted an
effectively per se prohibition on the use of crosses as

 4
secular symbols of commemoration.
The Ninth
Circuit has issued an unbroken string of decisions
invalidating every cross-shaped war memorial it has
encountered, including some, like the Peace Cross,
that are nearly a century old. See Trunk v. City of
San Diego, 629 F.3d 1099, 1110-12 (9th Cir. 2011).
Likewise, the Tenth Circuit has effectively adopted a
“presumption of unconstitutionality” for commemorative crosses. Am. Atheists, Inc. v. Davenport, 637
F.3d 1095, 1102-03 (10th Cir. 2010) (Kelly, J., joined
by Gorsuch, J., dissenting from denial of rehearing
en banc). These decisions split from the approaches
taken by other circuits, including the Second and
Fifth, that have recognized that the Latin cross may,
in appropriate contexts, convey a nonsectarian
message of commemoration. And they rest on multiple outlier understandings of this Court’s Establishment Clause precedents that other circuits have
properly rejected.
This Court’s intervention is urgently needed. If
permitted to stand, the Fourth Circuit’s decision will
compel the removal or dismemberment of a cherished
war memorial that has served as a site of solemn
commemoration and civic unity for nearly a century.
It will deepen division among the circuits on questions of profound importance to state and municipal
governments. And it will imperil “hundreds of
monuments with similar symbols standing on public
grounds,” including “those in nearby Arlington
National Cemetery, where crosses of comparable size
stand in commemoration of fallen soldiers.” App.
101a (Niemeyer, J., dissenting from denial of rehearing en banc).

 5
STATEMENT
A. Factual Background
The United States’ entry into World War I led to
death on a scale that America had not witnessed
since the Civil War. In little over a year, more than
300,000 American soldiers were killed or wounded in
Europe. An enduring symbol of this sudden and
brutal loss of life became the Latin cross, which
marked the graves of countless servicemen overseas.
App. 77a-78a. Widely published photographs recorded the rows of wooden crosses commemorating the
soldiers who perished at Argonne and Flanders
Field. D. Ct. Dkt. 83-5, at 12-21. And the poet John
McCrae wrote, in a celebrated remembrance, of “the
crosses, row on row, / That mark our place * * * We
are the Dead.” John McCrae, In Flanders Fields
(1915), reprinted in In Flanders Fields and Other
Poems 3 (G.P. Putnam’s Sons ed., 1919).
Almost a century ago, in 1925, the American Legion and a group of bereaved mothers erected a
memorial in Bladensburg, Maryland, to honor the
forty-nine men from Prince George’s County who
died in World War I. App. 55a-59a. To evoke the
grave markers on the battlefields of Europe, the
memorial bears the shape of a cross. App. 54a. It
has no religious text or content. At its base, a large
plaque lists the names of the dead, and contains a
dedication to “the heroes of Prince George’s County
Maryland who lost their lives in the Great War for
the liberty of the world.” App. 55a. The plaque also
bears a quotation from President Wilson, stating
that “[t]he right is more precious than peace.” App.
44a. Four words are inscribed on the monument, one
on each face: “valor; endurance; courage; devotion.”

 6
App. 55a. The symbol of the American Legion is
displayed at the monument’s center, and an American flag flies at one side. Id.
In the decades since this monument, commonly
referred to as the “Peace Cross,” was erected, other
memorials have been built nearby to honor the
veterans and fallen of other conflicts—a collection
now known as Veterans Memorial Park. App. 60a.
In 1944, a local American Legion post constructed a
monument 200 feet south of the Peace Cross to honor
the men and women of Prince George’s County who
died in World War II. Id. On July 4, 1983, a monument was constructed beside the World War II
memorial to honor the veterans of the Korean and
Vietnam Wars. App. 60a-61a. Other memorials
within this small park commemorate the War of
1812, the victims of Pearl Harbor, and the lives lost
on September 11, 2011. App. 9a, 60a-61a. Recently,
the community added two thirty-eight-foot-tall
statutes of soldiers who fought in the Battle of
Bladensburg. App. 61a.
From its inception, and up through the present
day, the Peace Cross has consistently been used by
the local community as the site of patriotic events to
honor the Nation’s veterans. App. 61a-62a. These
events usually take place on Veterans Day or Memorial Day, and typically follow the same format: there
is the presentation of colors, a singing of the national
anthem, an invocation, a keynote speaker—often a
veteran or military official—a song or readings, the
laying of a wreath or flowers, a benediction, and a
reception. App. 62a. No religious ceremony has ever
been held at the memorial. Id. The only mention of
a religious event of any kind occurred 87 years ago,

 7
and there is no record that the event actually took
place. Id. Until the present suit, no one ever challenged the monument’s legality. App. 23a.
In 1961, the Commission acquired the Peace Cross
in order to preserve the monument and address
traffic safety concerns arising from the expansion of
a nearby roadway. App. 59a-60a, 72a. When the
Commission obtained the Peace Cross, the American
Legion reserved the right to “to hold memorial services to departed veterans and other ceremonies” at
the memorial. App. 60a. Today, the Commission
funds routine maintenance and lighting of the Peace
Cross, which is listed on the National Register of
Historic Places and forms a part of the Star Spangled
Banner National Historic Trail. App. 63a; see D. Ct.
Dkt. 86-9, 86-11. The Commission has expended or
budgeted roughly $217,000 in recent decades to
refurbish the monument and ensure its continued
preservation. App. 63a.
B. Procedural History
1. In 2014, the American Humanist Association
and three local residents sued the Commission. They
contended that, because of its shape, the Peace Cross
constitutes an unconstitutional endorsement of
Christianity, and asked that the court order the
Commission to “remove” the memorial, “demolish” it,
or “remove [its] arms * * * to form a non-religious
slab.” D. Ct. Dkt. 78, at 2. The American Legion and
its local affiliates intervened as defendants, and the
parties cross-moved for summary judgment.
The District Court granted summary judgment to
the defendants. The court found “overwhelming
evidence” that “the predominant purpose of the
[Peace Cross] was for secular commemoration.” App.

 8
73a. Furthermore, it found that the monument’s
“history and context”—including the numerous
“secular elements” on its face, the “secular memorials” that surround it, the monument’s “nearly exclusive use” as a war memorial “for its entire history,”
and the absence of any legal challenge for nearly
nine decades—made clear to any “reasonable observer” that the Peace Cross does not serve to “endors[e]
religion.” App. 77a-83a.
2. A divided panel of the Fourth Circuit reversed.
Writing for the majority, Judge Thacker “s[aw] fit to
apply Lemon in this case.” App. 17a. The panel
acknowledged that the memorial “satisfied the first
prong of Lemon”: The Commission had “obtained the
Cross” to “maint[ain] * * * safety near a busy highway intersection,” and it “preserve[d] the memorial
to honor World War I soldiers,” both plainly “legitimate secular purposes.” App. 19a. But the panel
concluded that the memorial “fails the second and
third prongs of Lemon” because it “endorses Christianity—not only above all other faiths, but also to
their exclusion.” App. 28a, 31a.
The panel rested this conclusion on a single, overriding consideration: that the Memorial bears the
shape of a large cross. “The Latin cross,” the panel
reasoned, “is the ‘preeminent symbol of Christianity.’ ” App. 20a (quoting Buono v. Norton, 371 F.3d
543, 545 (9th Cir. 2004)). Although a cross “may
generally serve as a symbol of death and memorialization,” the court continued, “it only holds value as a
symbol of death and resurrection because of its
affiliation with the crucifixion of Jesus Christ.” App.
20a-21a. Thus, the panel concluded, “[e]ven in the
memorial context, a Latin cross serves not simply as

 9
a generic symbol of death, but rather a Christian
symbol of the death of Jesus Christ.” App. 21a.
The panel found that neither the history of the
Peace Cross nor its secular content and context
altered this exclusively religious meaning.
The
historical use of the cross “as a commemorative
symbol of World War I” was “of no moment,” the
panel reasoned, because crosses “on World War I
battlefields were individual—rather than universal—memorials to the lives of Christian soldiers.”
App. 21a-22a. Likewise, it was immaterial that the
Peace Cross had “stood unchallenged for 90 years,”
and “primarily” been used for “veteran-focused
ceremonies” throughout that time. App. 23a. The
“invocations and benedictions” at veterans’ events,
the panel stated, were themselves “group prayer[s].”
Id. And, notwithstanding Van Orden, it was “too
simplistic” to consider the monument’s long history
without challenge to be evidence of its “secular
effect.” App. 23a-24a. “Perhaps the longer the violation persists,” the panel countered, “the greater the
affront to those offended.” Id.
The panel likewise discounted the monument’s
exclusively secular content and context. “Admittedly,” the panel said, “the Cross contains a few secular
elements,” including “the plaque,” “the Legion symbol,” “the words ‘valor,’ ‘endurance,’ ‘courage,’ and
‘devotion’ inscribed on its base, ” the “American flag
flying in its vicinity”, and “its location in the Veterans Memorial Park.” App. 24a. But the panel expressed concern that “passers-by” might not view all
of the monument’s secular features, since it is “located in a high-traffic area” where “one could [not]
easily park,” and the plaque is “weathered” and once

 10
was partially “obscured” by “bushes.” App. 24a-26a
(citing Davenport, 637 F.3d at 1121). In addition, the
panel noted that the Peace Cross is taller and more
“prominent” than the surrounding monuments,
which the panel thought “evoke[d] a message of
aggrandizement and universalization of religion.”
App. 24a-25a (quoting Trunk, 629 F.3d at 1116
n.18)).
Thus, the panel held, “the Cross * * * ha[s] the primary effect of endorsing religion.” App. 27a. And, for
much the same reason, the panel found that the
Commission’s maintenance of the Peace Cross resulted in “excessive entanglement between government and religion.” App. 30a. By expending even
“de minimis” funds to preserve the monument, the
panel said, the Commission impermissibly “promot[ed] * * * a religious doctrine, Christianity.” App.
30a-31a & n.18. It concluded that the Commission’s
ownership of the memorial “says to any reasonable
observer that the Commission either places Christianity above other faiths, views being American and
Christian as one in the same, or both.” App. 31a.
Chief Judge Gregory dissented. He explained that
“the Supreme Court has consistently concluded that
displays with religious content—but also with a
legitimate secular use—may be permissible under
the Establishment Clause.”
App. 43a (internal
quotation marks omitted). That principle resolved
this case: Through its “appearance, context, and
factual background,” the Peace Cross made clear to
the reasonable observer that “the Memorial, while
displaying a religious symbol, is a war memorial
built to celebrate the forty-nine Prince George’s
County residents who gave their lives in battle.”

 11
App. 44a-45a, 49a (emphasis omitted). The majority’s conclusion that “the size of the Latin cross * * *
overwhelms these secular elements,” Chief Judge
Gregory wrote, “would lead to per se findings that all
large crosses are unconstitutional despite any
amount of secular history and context.” App. 44a45a.
3. The Fourth Circuit voted 8-6 to deny rehearing
en banc. Judge Wynn concurred in the denial of
rehearing. He asserted that “sanctioning a governmental body’s attempt to imbue a traditionally
religious symbol, like the Latin cross, with secular
meaning” would itself violate the First Amendment.
App. 95a (quoting Lee, 505 U.S. at 608 (Blackmun,
J., concurring)).
Chief Judge Gregory, Judge Wilkinson, and Judge
Niemeyer all filed dissents. Chief Judge Gregory
reiterated the views in his panel dissent, and stated
that “wherever one’s views fall on the matter, I am
certain [the case] raises an important question
worthy of the full Court’s review.” App. 98a. Judge
Wilkinson agreed: “I would let the cross remain and
let those honored rest in peace.” App. 100a. Judge
Niemeyer explained that “[i]t strains established
judicial analysis to conclude that Van Orden does not
allow the monument in this case to stand,” given
that every “observation[ ]” that Justice Breyer made
of the monument in Van Orden is applicable to the
Peace Cross, too. App. 105a. Judge Niemeyer added
that, by striking down the memorial, the panel’s
decision “puts at risk hundreds, and perhaps thousands, of similar monuments,” including “those in
nearby Arlington National Cemetery, where crosses

 12
of comparable size stand in commemoration of fallen
soldiers.” App. 101a, 105a.
REASONS FOR GRANTING THE PETITION
I. THE FOURTH CIRCUIT’S DECISION IS
PLAINLY WRONG.
This should have been an easy case. The Peace
Cross’s dedications, its inscriptions, its context, and
nearly a century of practice make abundantly clear
that this monument was erected to serve—and, for
93 years, has served—as a secular commemoration of
American servicemen who perished in World War I.
The panel’s conclusion that this cherished war
memorial is in fact an effort to “aggrandize[ ]” Christianity defies common sense, and contradicts the
long-settled understanding of the surrounding community. App. 31a. Furthermore, it flouts this
Court’s directive that the Establishment Clause
“does not require eradication of all religious symbols
in the public realm,”—including the Latin cross,
which has attained a “historical meaning * * * beyond the expression of religious views.” Buono, 559
U.S. at 716-718.
The panel’s decision to strike down a nearly century-old war memorial itself raises “a question of
substantial importance.”
Mount Soledad Mem’l
Ass’n v. Trunk, 132 S. Ct. 2535, 2535 (2012) (statement of Alito, J., respecting denial of certiorari). And
its decision to do so on the basis of such clear errors
of law is intolerable. This Court should grant certiorari and correct the Fourth Circuit’s grievous error.
1. a. This Court has long made clear that, whatever
its outer bounds, the Establishment Clause does not
prohibit public displays that employ religious sym-

 13
bolism where neither the purpose nor the primary
effect of the display is to endorse religious belief or
practice. See Lynch, 465 U.S. at 680-681. Every
Justice to address the issue has agreed that such
displays do not violate the Establishment Clause.
See, e.g., Van Orden, 545 U.S. at 691-692 (plurality
opinion); id. at 703 (Breyer, J., concurring in the
judgment); Buono, 559 U.S. at 747 n.7 (Stevens, J.,
dissenting). And, applying that principle, this Court
has repeatedly affirmed the constitutionality of
displays that use religious symbols to convey a
nonsectarian message—from the crèche in Lynch, to
the menorah in County of Allegheny v. American
Civil Liberties Union, 492 U.S. 573 (1989), to the text
of the Ten Commandments in Van Orden.
That straightforward principle should have resolved this case. There is no dispute that the Commission’s “purpose” in displaying the Peace Cross is
wholly secular. App. 19a. The Commission assumed
ownership of the Peace Cross in 1961 to promote
traffic safety and historic preservation, and it maintains the memorial today to commemorate the men
who died fighting in World War I. Id. As the panel
conceded, those aims are both “secular” and plainly
“legitimate.” Id.
Furthermore, no objective observer who was aware
of the memorial’s content, context, and history would
conclude that its effect is to endorse religion—let
alone to proselytize or coerce religious practice. See
Buono, 559 U.S. at 720-721. A large plaque on the
front of the memorial expressly proclaims its secular
purpose: to commemorate “the heroes of Prince
George’s County Maryland who lost their lives in the
Great War for the liberty of the world.” App. 55a.

 14
Each of the memorial’s faces honors one of the secular values that the war dead embody: “valor; endurance; courage; devotion.” Id. The emblem of the
American Legion, a civic organization dedicated to
honoring the Nation’s veterans, is prominently
displayed on both sides. Id. And a secular quotation
from President Wilson, declaring that “[t]he right is
more precious than peace,” is inscribed on the memorial’s plaque. App. 44a. These dedications speak
with a consistent voice, one wholly without religious
content; they mark the Peace Cross as a war memorial commemorating the men who perished in World
War I.
The shape of the memorial reaffirms that expressly
secular meaning. While the Latin cross is “certainly
a Christian symbol,” no one aware of the background
of the Peace Cross would think that it was erected
“to promote a Christian message.” Buono, 559 U.S.
at 715. In 1925, the Latin cross was an indelible and
widely recognized symbol of the servicemen who
perished overseas fighting in World War I. See id. at
725 (Alito, J., concurring in part and concurring in
the judgment).
Poems, photographs, and other
World War I memorials throughout the country
regularly used this symbol as a simple marker of the
dead. By using a cross to commemorate the fortynine war dead of Prince George’s County, the memorial “evokes thousands of small crosses in foreign
fields marking the graves of Americans who fell in
battles,” and seeks “simply to honor our Nation’s
fallen soldiers.” Id. at 715, 721 (plurality opinion).
The “physical setting of the monument” confirms
that it serves as a memorial to the fallen rather than
an object of religious observance. Van Orden, 545

 15
U.S. at 702 (Breyer, J., concurring). The Peace Cross
is situated on a highway median that “suggests little
or nothing of the sacred” and that “does not readily
lend itself to meditation or any other religious activity.” Id. Furthermore, it is located in the middle of
Veterans Memorial Park, an area dedicated to the
veterans and war dead of other national conflicts.
This collection of war monuments, secular all, “communicates to visitors” a single consistent message:
commemoration and respect for soldiers who died in
the Nation’s wars. Id.; see Cty. of Allegheny, 492 U.S.
at 635 (O’Connor, J., concurring).
And, over the course of nearly a century, the community has made clear that it understands the Peace
Cross to convey exactly that message. Since 1925,
the Peace Cross has virtually exclusively been used
for patriotic events honoring the Nation’s veterans.
App. 61a-62a. No religious event has been held at
the site for at least 87 years, if ever. Id. Beginning
in 1944, the community began to erect other war
memorials around the Peace Cross, evidencing their
understanding of the memorial as a commemorative,
not religious, monument. And for the first 89 years
of its history—and for 53 years after it was transferred to the Commission—no one challenged the
monument’s legality. This history testifies “more
strongly than can any set of formulaic tests that few
individuals, whatever their system of beliefs, are
likely to have understood the monument as amounting * * * to a government effort to favor a particular
religious sect.” Van Orden, 545 U.S. at 702 (Breyer,
J., concurring).
b. Van Orden confirms that the Peace Cross is constitutional. In his controlling concurrence in that

 16
case, Justice Breyer determined that a Ten Commandments display on the Texas State Capitol
grounds was constitutional because several considerations, taken together, made clear that the display
“serv[ed] a primarily nonreligious purpose”: (1) the
monument “prominently acknowledge[d]” that it was
donated by a “primarily secular” organization; (2) the
monument’s “physical setting” did not lend itself to
religious activity or suggest the sacred; (3) the display was part of a collection of “monuments” and
“historical markers” celebrating the “historical
‘ideals’ of Texans”; and (4) the monument had stood
for forty years without challenge. 545 U.S. at 701703.
Precisely the same factors are present here. The
Peace Cross “prominently acknowledges” that it was
donated by the American Legion, a civic organization
that honors our Nation’s veterans. Its physical
setting on a highway median does not lend itself to
religious activity. The monument is part of “Veterans Memorial Park,” a collection of other “monuments” and “historical markers” to the Nation’s
conflicts. And the memorial stood for nearly ninety
years without challenge.
If anything, the Peace Cross contains substantially
more indicia of secular meaning than the monument
in Van Orden. It has an expressly secular dedication, an inscription honoring secular values, and
decades’ worth of exclusively secular usage. As
Judge Niemeyer explained, “[i]t strains established
judicial analysis to conclude that Van Orden does not
allow the monument in this case to stand.” App.
105a.

 17
2. The panel majority nonetheless concluded that
this century-old war memorial is invalid, and must
be “raz[ed],” have its arms “remov[ed],” or be subjected to “alternative arrangements that would not
offend the Constitution.” App. 31a-32a n.19. That
judgment is deeply flawed.
a. The majority’s principal rationale for invalidating the Peace Cross was the bare fact that it has the
shape of a large Latin cross. App. 5a-6a. According
to the panel, the Latin cross acquired its meaning as
a symbol of death and remembrance from “its affiliation with the crucifixion of Jesus Christ.” App. 20a21a. Therefore, the panel reasoned, “[e]ven in the
memorial context, a Latin cross serves not simply as
a generic symbol of death, but rather a Christian
symbol of the death of Jesus Christ.” App. 21a.
That simply does not follow. This Court has repeatedly made clear that symbols that draw their
core meaning from religion may also be used to
convey a constitutionally permissible, nonsectarian
message. In Van Orden, Justice Breyer explained
that a display of the Ten Commandments—the text
of which expressly “invok[es] * * * the Deity” and
prescribes rules of religious observance—conveyed a
predominantly “secular moral message” when it
appeared as part of a collection of secular monuments. 545 U.S. at 700-702. So too in Lynch, the
Court held that a crèche sent a message of pluralism,
rather than religious devotion, when it appeared
among a collection of symbols honoring the winter
holidays. 465 U.S. at 680-681.
The Latin cross, no less than these other symbols,
can convey a nonreligious message as well as a
religious one. Indeed, in Buono, a plurality of the

 18
Court recognized that the cross does not serve “merely [as] a reaffirmation of Christian beliefs” when
used to commemorate the fallen of World War I. 559
U.S. at 721. Rather, it sends a message of “honor
and respect” for “those whose heroic acts, noble
contributions, and patient striving help secure an
honored place in history for this Nation and its
people.” Id. The erection of a cross-shaped monument to the men who died in World War I thus
“evokes far more than religion”; “[i]t 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.” Id.
The panel majority overlooked this secular meaning—one well-known at the time of the Peace Cross’s
construction—and instead “concentrated solely on
the religious aspects of the cross, divorced from its
background and context.” Id. But this Court’s
precedents do not permit such categorical hostility to
the use of “religious symbols in the public realm.” Id.
at 718 (citing Lee, 505 U.S. at 598). The court should
have examined the display as a whole, in light of its
background and history, to determine whether the
“nonreligious aspects” of its message “predominate”
over its religious associations. Van Orden, 545 U.S.
at 701 (Breyer, J., concurring). Here, they plainly
do: If even a bare, unadorned cross in the desert
could convey a nonreligious message of remembrance, see Buono, 559 U.S. at 715-716, 721, then a
monument that contains multiple express declarations of its secular purpose, supported by nearly a
century of practice, surely does so, as well. See id. at
747 n.7 (Stevens, J., dissenting) (stating that, when

 19
used as part of a “more elaborate monument,” a cross
can “convey a primarily nonreligious message”).
b. The panel compounded its error by discounting
many of the monument’s “[a]dmittedly * * * secular
elements.” App. 24a. By the panel’s logic, a “reasonable observer” might not notice the cross’s plaque,
inscription, and surroundings because the cross is
“located in a high-traffic area” where one cannot
“easily park”; the plaque is “weathered”; the base of
the monument was at one time “obscured” by bushes;
and some of the other memorials are up to a “halfmile” away. App. 24a-27a. The panel thought that
“passers-by” might therefore fail to “read the plaque”
or accurately ascertain the monument’s secular
context. App. 25a.
But that is simply not the way the “reasonable
observer” test works. The “reasonable observer” is
not a “casual passerby” with partial knowledge of the
challenged display. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 779 (1995)
(O’Connor, J., concurring). She is a “personification
of the community ideal of reasonable behavior,” one
who is acquainted with all of the relevant facts,
history, and circumstances. Id. at 779-780; see
Buono, 559 U.S. at 720-721. The “reasonable observer” accordingly would not be concerned with such
minutiae as the availability of parking and the
height of the bushes. She would fairly assess all
indicia of the monument’s meaning, even those not
easily visible at a moment’s glance—all of which
powerfully attest to the monument’s secular meaning.
c. Finally, the panel erred by declining to place any
weight on the monument’s nine decades of exclusive-

 20
ly secular history.1 It rejected as “too simplistic” the
notion that this history weighed in favor of the
monument’s constitutionality, opining that it could
just as easily be said that “the longer a violation
persists, the greater the affront to those offended.”
App. 23a-24a. This Court, however, has previously
said the opposite: In Van Orden, Justice Breyer’s
controlling concurrence deemed it “determinative”
that the monument at issue had stood for four decades without challenge. 545 U.S. at 702. Likewise,
in Buono, the plurality explained that “[t]ime * * *
ha[d] played its role” in shaping the meaning of the
memorial at Sunrise Rock, giving it a “historical
meaning” as a place in which the public came to “pay
* * * respects” and “honor[ ]” the war dead. 559 U.S.
at 716; see also Lynch, 465 U.S. at 684. The panel
could not simply ignore these holdings, and treat the
monument’s history as a reason for subjecting it to
greater scrutiny. App. 23a-24a.2
1

The panel’s suggestion that the monument’s history is only
“semisecular” was unfounded. App. 23a. The panel said that
“the Cross has been the scene of Christian activities” because of
a single newspaper advertisement regarding one religious event
87 years ago. Id. And the panel wrongly characterized the
“invocations and benedictions” at annual Veterans Day and
Memorial Day ceremonies as illicit “group prayer[s].” Id.; cf.
Town of Greece v. Galloway, 134 S. Ct. 1811, 1818-19 (2014).
2

The panel’s holding (at App. 30a) that the Peace Cross entails “entanglement between government and religion” cannot
sustain any weight. The panel rested that holding entirely on
the erroneous premise that the memorial “embodies promotion
of a religious doctrine.” App. 30a-31a & n.18. And even on that
premise, the panel’s conclusion was wrong; the de minimis
expenditure of funds to maintain a monument does not entail
the sort of “pervasive monitoring by public authorities * * * of

 21
In the end, the panel’s holding would invite the
very “kind of social conflict the Establishment Clause
seeks to avoid.” Van Orden, 545 U.S. at 699 (Breyer,
J., concurring). Its decision would compel the removal or destruction of a monument that has served
as a source of civic unity for 93 years, stripping
Bladensburg of a site of remembrance and mourning,
and “conveying disrespect for those the cross [is] seen
as honoring.” Buono, 559 U.S. at 716. Furthermore,
is decision will inevitably “encourage disputes concerning the removal” of other cross-shaped war
memorials throughout the Fourth Circuit.
Van
Orden, 545 U.S. at 704 (Breyer, J., concurring); see
infra pp. 33-35. That sort of divisiveness and destruction toward our Nation’s historical landmarks
“has no place in our Establishment Clause traditions.” Van Orden, 545 U.S. at 704 (Breyer, J.,
concurring). The Court should grant the writ and
correct the Fourth Circuit’s serious error.
II. THE FOURTH CIRCUIT’S DECISION
DEEPENS MULTIPLE CIRCUIT SPLITS
Certiorari is also warranted because the Fourth
Circuit’s decision continues a worrying trend in the
lower courts. Multiple circuits, including the Ninth,
the Tenth, and now the Fourth, have adopted what
amounts to a virtual per se prohibition on the use of
crosses as symbols of commemoration. That rule
sharply divides from the approach taken by other
courts, including the Second and Fifth Circuits,
religious matter” or “religious thought” required to implicate
entanglement concerns. Aguilar v. Felton, 473 U.S. 402, 413
(1985).

 22
which have upheld cross-shaped displays where
context and history make clear that they are intended to serve as secular symbols of commemoration.
And it rests on multiple erroneous understandings of
this Court’s Establishment Clause precedents that
other circuits have properly rejected.
A. The Circuits Are Divided On Whether The
Cross May Ever Serve As A Secular Symbol
Of Commemoration.
The circuits have sharply split as to the permissibility of ever using the cross as a commemorative
symbol.
1. a. The Ninth Circuit began applying a virtual per
se prohibition on cross-shaped monuments in Separation of Church & State Committee v. City of Eugene, 93 F.3d 617 (9th Cir. 1996) (per curiam).
There, the court considered the constitutionality of
the Veterans Memorial Cross in Eugene, Oregon.
That memorial was donated by the American Legion,
was marked with a plaque containing a dedication to
the veterans of all wars, prominently featured the
words “Bravely They Died, Honored They Rest,” and
was used only for secular commemorative events.
Eugene Sand & Gravel, Inc. v. City of Eugene, 558
P.2d 338, 344 (Or. 1976). In 1976, the Oregon Supreme Court had upheld this cross on the ground
that its content and usage made clear that it was
maintained for “the secular purpose” of honoring war
veterans, and served as a nonreligious “symbol of
sacrifice” akin to other “large monuments with
crosses in military cemeteries.” Id. at 346-347. In a
brief per curiam opinion, the Ninth Circuit invalidated the memorial. Its reasoning consisted of one
sentence: “There is no question that the Latin cross

 23
is a symbol of Christianity,” it stated, and thus “its
placement on public land by the City of Eugene
violates the Establishment Clause. City of Eugene,
93 F.3d at 620.
The Ninth Circuit subsequently applied that syllogism to invalidate another cross-shaped war memorial in Buono v. Norton, 371 F.3d 543 (9th Cir. 2004)
(“Buono I”). In that case, the memorial at issue was
erected in 1934 by the Veterans of Foreign Wars,
contained a plaque identifying it as a war memorial,
had been used for decades as a place to commemorate veterans, and was designated by Congress as a
federal memorial for World War I veterans. Id. at
548-549. The Ninth Circuit stated that all of this
context was “of no moment.” Id. at 549. Its analysis,
it said, was “squarely controlled” by the one-sentence
holding in City of Eugene, because this too was a
“cross * * * on publicly-owned land.” Id. at 548.
The Ninth Circuit reapplied this holding in Buono
v. Kempthorne, 502 F.3d 1069 (9th Cir. 2007),
amended, 527 F.3d 758 (9th Cir. 2008) (“Buono II”).
In the intervening four years, Congress had attempted to address the Ninth Circuit’s concerns in Buono I
by enacting a statute transferring the monument to
private land. Id. The Ninth Circuit, however, held
that this transfer “d[id] nothing to minimize the
impermissible government endorsement,” and enjoined the statute. Id. at 1086. This Court reversed:
It explained that the Ninth Circuit had taken “insufficient account of the context” and “historical meaning” of the memorial, and noted that the underlying
decision in Buono I “may be questionable,” as well.
Buono, 559 U.S. at 715-718.

 24
Undeterred, the Ninth Circuit invalidated yet another decades-old war memorial in Trunk. That
memorial was originally erected on Mount Soledad in
1913, was “the centerpiece of a more extensive war
memorial,” had been the site of regular veterans’
services for decades, and was acquired by Congress
in 2006 specifically to preserve it as a memorial
honoring the Nation’s veterans. 629 F.3d at 1102-05.
The Ninth Circuit struck down the monument,
applying what it characterized as the “straightforward” rule set forth in its precedents: the Latin
cross, it said, is “sectarian in nature,” and does not
“possess[ ] an ancillary meaning as a secular war
memorial.” Id. at 1112. Five judges dissented from
denial of rehearing en banc, summarizing the Circuit’s rule as: “a cross is a cross is a cross.” Trunk v.
City of San Diego, 660 F.3d 1091, 1091 (9th Cir.
2011) (Bea, J., dissenting from denial of rehearing en
banc).
b. The Tenth Circuit has taken a similarly categorical approach. In Davenport, the court considered
the constitutionality of Utah’s display of Latin crosses to memorialize fallen highway patrol officers. 637
F.3d at 1111. These crosses, like the war memorials
in Buono and Trunk, contained multiple secularizing
details, including the biographical information of the
fallen officers and the insignia of the Utah Highway
Patrol. Id. at 1121-22. The court, however, reasoned
that the cross is not a “generic symbol of death” but a
“Christian symbol of death,” and thus its use as a
symbol of commemoration “can[not] be divorced from
its religious significance.” Id. at 1122. Dissenting
from denial of rehearing en banc, Judge Kelly, joined
by then-Judge Gorsuch, criticized this “presumption
of unconstitutionality,” explaining that it led the

 25
court to “promptly disregard” every “contextual
element[ ]” demonstrating the crosses’ secular effect.
Id. at 1102-03 (Kelly, J., dissenting from denying of
rehearing en banc).
c. In the decision below, the Fourth Circuit expressly aligned itself with the views of the Ninth and
Tenth Circuits. Invoking Buono, Trunk, and Davenport, it asserted that the Latin Cross is “ ‘the
preeminent symbol of Christianity,’ ” not “a generic
symbol of death,” and that its sectarian meaning
“overshadows [the Peace Cross’s] secular elements.”
App. 20a-21a, 26a (citation omitted). Applying that
principle, the Court then invalidated the Peace
Cross—a monument laden with as many indicia of
secular meaning as could reasonably be imagined.
As Chief Judge Gregory explained, the Circuit’s
newfound rule will thus lead—as it has done in the
Ninth Circuit—“to per se findings that all large
crosses are unconstitutional despite any amount of
secular history and context.” App. 45a.
2. In contrast, the Second Circuit and the Fifth
Circuit (and, as noted above, the Oregon Supreme
Court), have upheld the use of crosses where context
and history make clear that they are intended as
secular symbols of commemoration.
In American Atheists, Inc. v. Port Authority of New
York and New Jersey, 760 F.3d 227 (2d Cir. 2014),
the Second Circuit upheld the display of a crossshaped memorial at the September 11 Museum.
That memorial, which consisted of two girders welded in the shape of a Latin cross, had been recovered
from the ruins of the World Trade Center, and was
treated by some rescue workers as a devotional
object. Id. at 233-234. The Second Circuit explained

 26
that a reasonable observer “would be familiar not
only with the religious symbolism of a Latin cross
and the devotional use made of The Cross at Ground
Zero,” but also the secular context in which it appeared at the Museum. Id. at 241. That context
included a plaque indicating that the cross was
displayed to provide “an accurate historical account
of events relating to September 11,” the absence of
any nearby “Christian iconography,” the fact that the
Ground Zero cross was widely understood as “an
inclusive symbol for any persons seeking hope and
comfort,” and the surrounding exhibits displaying
“various means that people employed to come to
terms with the attacks’ devastation.” Id. at 241-244.
Together, the court held, this context made clear that
the cross’s purpose was “not [a] divisive one of promoting religion over nonreligion.” Id. at 244.
The Fifth Circuit has also upheld the display of
crosses used as symbols of historical commemoration. In Murray v. City of Austin, 947 F.2d 147 (5th
Cir. 1991), the court upheld the display of a Latin
cross in the town seal of Austin, Texas. Id. at 149.
The court acknowledged that the symbol was “a
Christian cross,” and that it had been adapted from
Stephen Austin’s coat of arms, where it had the
religious purpose of commemorating Austin’s ancestor’s participation in a crusade. Id. at 150-151. But
the court found it dispositive that the town itself had
no “improper purpose in adopting the insignia,” that
the seal enjoyed a “long and unchallenged use,” that
it had a “non-proselytizing effect,” and that removing
the cross would “arguably evince[ ] not neutrality,
but instead hostility, to religion.” Id. at 158. Similarly, in Briggs v. Mississippi, 331 F.3d 499 (5th Cir.
2003), the Fifth Circuit upheld the use of the St.

 27
Andrew’s Cross in the Mississippi state flag. Although St. Andrew—one of the twelve apostles—was
a religious figure, the court explained, the flag’s
“objective meaning in the community” was nonreligious, and any religious endorsement it entailed was
“at most indirect, remote and incidental.” Id. at 507.
B. The Circuits’ Division Rests On Several
Basic Disagreements As To The Meaning
Of This Court’s Establishment Clause
Precedents.
The circuits’ division on this important question
proceeds from at least three fundamental disagreements on the meaning of this Court’s Establishment
Clause precedents. The Ninth, Tenth, and Fourth
Circuits have all taken outlier views on the nature of
the endorsement inquiry: These courts have held
that the commemorative use of the cross is inseparable from its religious meaning; that the reasonable
observer is akin to a selectively informed “passerby”;
and that a monument’s longstanding history without
challenge is irrelevant—or even detrimental—to its
constitutionality under the Establishment Clause.
Other circuits have properly declined to adopt those
views.
1. The circuits disagree on whether a commemorative cross necessarily conveys a religious message.
First, the circuits’ division stems from a fundamental disagreement as to whether the Latin cross itself
can ever convey a meaning that is not predominantly
religious.
The Ninth, Tenth, and Fourth Circuits have each
held that the commemorative meaning of the Latin

 28
cross is inherently and overwhelmingly sectarian. In
Trunk, the Ninth Circuit flatly stated that while
“[t]he Latin cross can *** serve as a powerful symbol
of death and memorialization,” it necessarily “remains a sectarian, Christian symbol.” 629 F.3d at
1116. Likewise, the Tenth Circuit held in Davenport
that secular details on a cross cannot “nullif[y] [its]
religious sectarian content because a memorial cross
is not a generic symbol of death; it is a Christian
symbol of death.” 637 F.3d at 1122.3 The Fourth
Circuit applied nearly identical language in the
decision below: “Even in the memorial context,” it
stated, “a Latin cross serves not simply as a generic
symbol of death, but rather a Christian symbol of the
death of Jesus Christ.” App. 21a.
In contrast, the Second and Fifth Circuits—like the
plurality in Buono—have rejected this rigid view of
the cross’s meaning. In American Atheists, the
Second Circuit held that the commemorative use of
the Latin cross does not necessarily “derive[ ] from its
religious symbolism and devotional use”; rather, the
court explained, the cross may be used to convey a
meaning that is “historical rather than theological.”
760 F.3d at 239-240. Similarly, the Fifth Circuit has
3

The Tenth Circuit distinguished its earlier decision in Weinbaum v. City of Las Cruces, 541 F.3d 1017 (10th Cir. 2008), in
which the court held that the City of Las Cruces could use a
cross in its seal because the seal’s “symbolism [wa]s not religious at all,” and instead served simply as a “pictograph *** for
a city named ‘The Crosses.’ ” Id. at 1033, 1035 (emphasis
added). In contrast, Davenport reasoned, the use of the cross as
a “symbol of death” necessarily conveys a meaning that
“can[not] be divorced from its religious significance.” 637 F.3d
at 1122.

 29
held that a “Christian cross” need not “demonstrate[ ] a preference for Christianity,” but may
simply serve to commemorate a municipality’s
“unique role and history.” Murray, 947 F.2d at 150,
155.
2. The circuits disagree on what knowledge to
attribute to the “reasonable observer.”
The circuits have also reached divergent results
because they fundamentally disagree on what
knowledge to attribute to the “reasonable observer.”
Both the Tenth and the Fourth Circuits understand the reasonable observer as an ordinary
“passerby” who may fail to notice secularizing details
that are not plainly visible. In Davenport, the Tenth
Circuit held that a reasonable observer would not
take account of the nonreligious details on a roadside
cross because “a motorist driving by one of the memorial crosses at 55-plus miles per hour may not
notice, and certainly would not focus on,” such information. 637 F.3d at 1121; see Green v. Haskell
Cty. Bd. of Comm’rs, 568 F.3d 784, 802 (10th Cir.
2009) (stating that a reasonable observer may have a
“mistaken impression” about a monument’s context).
Similarly, in the decision below, the Fourth Circuit
held that a reasonable observer would not “read the
plaque” on the Peace Cross or view the surrounding
monuments because the memorial is “located in a
high-traffic area,” it is difficult to “park,” and the
plaque is too “small” and “weathered.” App. 24a-26a
(citing Davenport, 637 F.3d at 1121).
Other circuits have rejected this cramped notion of
the reasonable observer. The Third Circuit, for
instance, has stated that the reasonable observer is a
person who is “presumed to have an understanding

 30
of the general history of the display and the community in which it is displayed,” and who is “more
knowledgeable than the uninformed passerby.”
Freethought Soc’y, of Greater Phila. v. Chester Cty.,
334 F.3d 247, 259 (3d Cir. 2003) (emphasis added).
The Sixth Circuit has likewise “reject[ed] the definition of the reasonable observer” as a person who
“ha[s] no knowledge beyond what appears upon
seeing” a display, or who fails to “come close enough
to * * * read [a] sign.” Ams. United for Separation of
Church & State v. City of Grand Rapids, 980 F.2d
1538, 1549-50 (6th Cir. 1992) (en banc) (emphasis
added). Similarly, the Eleventh Circuit has rejected
reliance on the “perceptions of [an] ill-informed” or
“first-time visitor” when determining what the
reasonable observer would conclude.
ChabadLubavitch of Ga. v. Miller, 5 F.3d 1383, 1390 n.11
(11th Cir. 1993).
Both Justice Thomas and Justice Gorsuch have
noted the significant disagreement between the
circuits on this point. Then-Judge Gorsuch noted, in
dissenting from denial of rehearing en banc in Davenport, that the Tenth Circuit had “repeatedly misapplied the ‘reasonable observer’ test” by equating
the reasonable observer with a “biased, impaired,
and distracted viewer,” as a result “strik[ing] down
laws other courts would uphold.” 637 F.3d at 1107,
1110. Justice Thomas observed that it was “entirely
unpredictable” whether “a given court’s hypothetical
observer will be ‘any beholder (no matter how unknowledgeable), or the average beholder, or * * * the
‘ultra-reasonable’ beholder.” Utah Highway Patrol
Ass’n v. Am. Atheists, Inc., 132 S. Ct. 12, 19-20 (2011)
(Thomas, J., dissenting from denial of certiorari)
(citation omitted).

 31
3. The circuits disagree on the relevance of a
monument’s longevity and history.
Finally, the division between the circuits appears
to rest on disagreement as to whether to accord any
weight to the factor Justice Breyer deemed “determinative” in Van Orden—that is, that a display has
stood for decades without facing legal challenge.
545 U.S. at 702.
The Ninth and Fourth Circuits have openly rejected this portion of Justice Breyer’s controlling concurrence. In Trunk, the Ninth Circuit stated, shortly
after citing Justice Breyer’s statement to the contrary, that “the suggestion that the longevity and permanence of [a monument] diminishes its effect has
no traction.” 629 F.3d at 1122 (emphasis added); see
Carpenter v. City & Cty. of San Francisco, 93 F.3d
627, 632 (9th Cir. 1996) (similar). Similarly, in the
decision below, the panel cited the relevant portion of
Van Orden and then immediately dismissed it as “too
simplistic,” contending instead that “the longer a
violation persists, the greater the affront to those
offended.” App. 23a-24a (emphasis added).
Unsurprisingly, other circuits have not dismissed
this Court’s precedent so cavalierly. The Fifth
Circuit has held that the fact that a display “stood
without complaint” for decades “supports the notion
that [it] was not objectively seen as predominantly
religious.” Staley v. Harris Cty., 461 F.3d 504, 513
(5th Cir. 2006), dismissed as moot, 485 F.3d 305 (5th
Cir. 2007) (en banc); see Murray, 947 F.2d at 158
(relying on the cross’s “long and unchallenged use” in
upholding its constitutionality).
Similarly, the
Eighth Circuit has upheld the constitutionality of a
monument in part because “decades passed during

 32
which the * * * monument stood * * * without objection.”
ACLU Nebraska Found. v. City of
Plattsmouth, 419 F.3d 772, 778 (8th Cir. 2005).
*

*

*

In short, the circuits disagree on whether municipalities, States, and the Federal Government may
maintain cross-shaped memorials, even memorials
that are laden with secular details and that have
stood without controversy for decades. And they
disagree on how to determine whether those memorials are lawful in the first place. Only this Court’s
intervention can clear the confusion. The Fourth,
Ninth, and Tenth Circuits have each refused to
rehear the relevant decisions en banc, despite multiple vigorous dissents. See Trunk, 660 F.3d at 1091
(Bea, J., dissenting from denial of rehearing en
banc); Buono II, 527 F.3d at 760 (O’Scannlain, J.,
dissenting from denial of rehearing en banc); Davenport, 637 F.3d at 1101 (Kelly, J., dissenting from
denial of rehearing en banc); id. at 1107 (Gorsuch, J.,
dissenting from denial of rehearing en banc); App.
98a (Gregory, C.J., dissenting from denial of rehearing en banc); App. 99a (Wilkinson, J., dissenting
from denial of rehearing en banc); App. 101a (Niemeyer, J., dissenting from denial of rehearing en
banc). And this Court’s decisions in Van Orden and
Buono have not caused any of these courts to reassess its views. The Court should grant certiorari and
hold that, at least where a monument is as plainly
secular as the Peace Cross, and has stood without
controversy for decades, the mere use of a cross does
not render it unconstitutional.

 33
III. THE QUESTION PRESENTED IS
IMPORTANT.
The question presented is of exceptional importance. On its own, the Fourth Circuit’s invalidation of the Peace Cross would merit this Court’s
review. The Peace Cross has stood as a place of
solemn commemoration and a source of civic unity
for nearly a century. By compelling its removal,
destruction or dismemberment, the panel’s decision
will necessitate an act of shocking disrespect for the
brave souls of Prince George’s County who died
fighting for their country in World War I. Buono,
559 U.S. at 715-716. It will also deprive the community of a historic landmark that has for generations
enabled residents to remember lost loved ones,
engage in expressions of patriotism, and honor the
Nation’s veterans. “The demolition of this venerable
* * * monument” will inevitably be “interpreted by
some as an arresting symbol of a Government * * *
bent on eliminating from all public places and symbols any trace of our country’s religious heritage,”
provoking the sort of religiously-based divisiveness
the Establishment Clause seeks to prevent. Id. at
726; see Van Orden, 545 U.S. at 704 (Breyer, J.,
concurring).
Review is also warranted because the Fourth Circuit’s decision “puts at risk hundreds of monuments
with similar symbols standing on public grounds”
throughout the region encompassed by the Fourth
Circuit. App. 101a (Niemeyer, J., dissenting from
denial of rehearing en banc). In Arlington National
Cemetery, two large crosses “of comparable size”—
the Argonne Cross and the Canadian Cross of Sacrifice—stand in commemoration of the veterans of

 34
World War I. Id. In Towson, Maryland, the Wayside
Monument honors 204 men from Baltimore County
who died in World War I. D. Ct. Dkt. 83-63. In
Virginia, the Cape Henry Memorial Cross records
the place where the first English colonists landed.4
Other such monuments are common in military
graveyards, town centers, and national parks
throughout the Fourth Circuit and the country more
broadly. See, e.g., Trunk, 660 F.3d at 1099-1100
(Bea, J., dissenting from denial of rehearing en banc)
(listing hundreds of additional examples); Buono II,
527 F.3d at 765 n.6 (O’Scannlain, J., dissenting from
denial of rehearing en banc) (giving further examples). It is difficult to see how these crosses could
stand if the Peace Cross—which is marked in every
conceivable way with declarations of its secular
purpose—cannot.
The panel majority suggested that the monuments
at Arlington National Cemetery might be distinguished from the Peace Cross because they are
“smaller,” appear in a “designated area for commemorating and memorializing veterans who have passed
away,” and are surrounded by graves carrying religious symbols. App. 29a & n.16. These distinctions
are empty. The Argonne Cross and Canadian Cross
of Sacrifice are between 13 and 24 feet high, substantially “talle[r]” than the surrounding monuments. App. 24a. Veterans Memorial Park is Prince
George’s County’s place for “commemorating and
memorializing veterans,” no less than Arlington
4

Cape Henry Memorial Cross, Nat’l Park Serv.,
https://www.nps.gov/came/cape-henry-memorial-cross.htm (last
visited June 28, 2018).

 35
National Cemetery is the Nation’s. And the notion
that more religious symbolism would have saved the
Cross from invalidity under the Establishment
Clause is absurd. If anything, the addition of overtly
sectarian monuments nearby would have indicated—
contrary to fact—that the Peace Cross commemorates Christian veterans alone, sending precisely the
sort of divisive message the Establishment Clause
disfavors.
Finally, certiorari is warranted to bring muchneeded clarity to this Court’s Establishment Clause
jurisprudence. See Rowan Cty. v. Lund, No. 17-565,
2018 WL 3148570, at *1 (U.S. June 28, 2018) (Thomas, J., joined by Gorsuch J., dissenting from denial of
certiorari). Countless displays throughout the Nation employ crosses and other religious symbols. The
circuits’ profound disagreements about the proper
means of evaluating these displays—whether crosses
are inescapably religious, whether the reasonable
observer is merely a casual passerby, and whether
longstanding history matters at all—have resulted in
variations that defy rational explanation. See, e.g.,
City of Eugene, 93 F.3d at 620 (invalidating same
war memorial previously upheld by another court);
App. 24a-26a (considering factors expressly rejected
by Third and Sixth Circuits); Utah Highway Patrol,
132 S. Ct. at 17-20 (Thomas, J., dissenting from
denial of certiorari) (cataloguing other examples).
The Court should not permit longstanding civic
monuments in Bladensburg, Arlington, and elsewhere to be removed on the basis of such arbitrary
distinctions and regional variations in approach.

 36
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
ADRIAN R. GARDNER
WILLIAM C. DICKERSON
TRACEY A. HARVIN
MARYLAND-NATIONAL
CAPITAL PARK AND
PLANNING COMMISSION
6611 Kenilworth Ave.,
Suite 200
Riverdale, MD 20737

NEAL KUMAR KATYAL
Counsel of Record
MITCHELL P. REICH
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
neal.katyal@hoganlovells.co
Counsel for Petitioner

JUNE 2018