No. 18-18
================================================================

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 Writ Of Certiorari
To The United States Court Of Appeals
For The Fourth Circuit
-----------------------------------------------------------------BRIEF IN OPPOSITION
-----------------------------------------------------------------MONICA L. MILLER
Counsel of Record
DAVID A. NIOSE
AMERICAN HUMANIST ASSOCIATION
1821 Jefferson Place N.W.
Washington, D.C. 20036
(202) 238-9088
mmiller@americanhumanist.org
DANIEL P. DOTY
LAW OFFICE OF DANIEL P. DOTY, P.A.
5500 Harford Road, Suite 202
Baltimore, Maryland 21214
Counsel for Respondents
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

 i
QUESTIONS PRESENTED
The government publicly defends its 40-foot-tall
Christian cross monolith even though its officials have
expressed relief at the prospect of it crumbling down
on its own.
Conceived as a mammoth “Calvary Cross”—
symbolic of the crucifixion of Jesus Christ—the cross
was constructed on town property in a three-way
highway median, which is now the county’s busiest
intersection. When the cross was first dedicated in
1925 in a ceremony replete with Christian clergy-led
prayers and the involvement of local, state, and federal
officials, the keynote speaker, a state representative,
proclaimed the cross to be “symbolic of Calvary.”
Virtually every event held at the cross has featured
Christian-themed prayers.
In 1985, the government spent $100,000 renovating the cross, followed by an elaborate “Rededication
Ceremony,” dedicating the cross to veterans of all wars.
Despite spending an additional $17,000 on routine
maintenance, the cross remains in critical condition
and even poses a safety hazard. In 2008, the government set aside $100,000 to resuscitate this rapidly deteriorating Christian memorial, but officials recently
indicated that it is likely beyond repair. The questions
presented are:
1. Did the Fourth Circuit correctly determine
that, in light of its size, history, and context, the government’s Christian cross—the preeminent symbol of

 ii
QUESTIONS PRESENTED—Continued
Christianity—endorses Christianity, not only above all
other faiths, but also to their exclusion?
2. Did the Fourth Circuit correctly determine,
consistent with every other circuit decision involving a
memorial cross, that a government’s Christian cross
war memorial, towering over a busy highway intersection, gives the impression to reasonable observers that
Christian veterans are being honored to the exclusion
of all others?
3. Did the Fourth Circuit correctly determine
that the government’s funding, restoration, monitoring, and ongoing maintenance of an enormous Christian symbol that dominates its surroundings foster
excessive entanglement with religion?

 iii
LISTINGS OF PARTIES TO PROCEEDINGS
The petition correctly states the names of all
parties to this case.
RULE 29.6 STATEMENT
Respondent American Humanist Association is
a nonprofit corporation, exempt from taxation under
26 U.S.C. § 501(c)(3). It has no parent or publicly
held company owning ten percent or more of the corporation.

 iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................

i

LISTINGS OF PARTIES TO PROCEEDINGS .....

iii

RULE 29.6 STATEMENT ....................................

iii

TABLE OF CONTENTS ......................................

iv

TABLE OF AUTHORITIES .................................

vi

JURISDICTION ...................................................

1

INCORPORATION BY REFERENCE.................

1

INTRODUCTION ................................................

1

COUNTERSTATEMENT OF THE CASE ...........

5

REASONS FOR DENYING THE WRIT ..............

8

I. The case is unripe for this Court’s review ......

9

II.

The Fourth Circuit’s narrow fact-specific
decision neither hinders the government’s
ability to honor its war dead nor threatens
any other monument .................................

9

A. Modifying the monument to honor all
veterans advances religious liberty
and equality .........................................

9

B. The government’s Christian cross war
memorial co-opts spiritual content for
military purposes, offending many
Christians ............................................ 14
C. No other monument is affected by the
Fourth Circuit’s fact-intensive ruling .... 16

 v
TABLE OF CONTENTS—Continued
Page
III.

There is no Circuit split ............................ 20
A. The Circuits agree that a Christian
cross does not serve as a secular symbol of commemoration ......................... 20
B. The Commission misconstrues the
Circuits’ decisions to manufacture a
split ...................................................... 21
1. The Second and Fifth Circuits
never ruled on the constitutionality
of a war memorial cross .................. 21
2. The Fourth, Ninth, and Tenth Circuits’ decisions do not impose a per
se prohibition against crosses ......... 23
C. The Circuits do not disagree on what
knowledge to attribute to the reasonable observer ......................................... 26
D. The Circuits do not disagree on the
relevance of longevity and history in
cross cases ........................................... 28

IV.

The Fourth Circuit reached the correct
result in accordance with this Court’s
precedents ................................................. 31
A. There is no conflict with Lynch ........... 34
B. There is no conflict with Buono........... 36
C. There is no conflict with Van Orden .....

41

CONCLUSION..................................................... 43

 vi
TABLE OF AUTHORITIES
Page
CASES
ACLU of Kentucky v. Mercer County, 432 F.3d
624 (6th Cir. 2005) ...................................................27
ACLU v. City of St. Charles, 794 F.2d 265 (7th
Cir. 1986) ............................................... 23, 27, 35, 36
ACLU v. Rabun County Chamber of Commerce,
Inc., 698 F.2d 1098 (11th Cir. 1983) .................. 23, 37
Adland v. Russ, 307 F.3d 471 (6th Cir. 2002) .............27
American Atheists, Inc. v. Duncan, 616 F.3d 1145
(10th Cir. 2010)................................ 20, 21, 25, 26, 36
American Atheists, Inc. v. Port Authority, 760
F.3d 227 (2d Cir. 2014) ...................................... 21, 22
American Humanist Association v. Lake Elsinore, 2014 U.S. Dist. LEXIS 25180 (C.D. Cal.
2014) ........................................................................20
Board of Education of Kiryas Joel Village School
District v. Grumet, 512 U.S. 687 (1994) ....................9
Books v. City of Elkhart, 235 F.3d 292 (7th Cir.
2000) ..........................................................................8
Briggs v. Mississippi, 331 F.3d 499 (5th Cir.
2003) ........................................................................21
Buono v. Norton, 371 F.3d 543 (9th Cir. 2004) ...........20
Cabral v. City of Evansville, 958 F. Supp. 2d
1018 (S.D. Ind. 2013), dismissed on other
grounds, 759 F.3d 639 (7th Cir. 2014) ....................20
Capitol Square Review & Advisory Bd. v. Pinette,
515 U.S. 753 (1995) ...................................................2

 vii
TABLE OF AUTHORITIES—Continued
Page
Card v. City of Everett, 520 F.3d 1009 (9th Cir.
2008) ........................................................................29
County of Allegheny v. ACLU, 492 U.S. 573
(1989) ............................................................... passim
Doe v. Elmbrook School District, 687 F.3d 840
(7th Cir. 2012)..........................................................14
Ellis v. La Mesa, 990 F.2d 1518 (9th Cir. 1993) .........20
Engel v. Vitale, 370 U.S. 421 (1962) ............ 1, 10, 16, 32
Epperson v. Arkansas, 393 U.S. 97 (1968) ..................31
Friedman v. Board of County Commissioners,
781 F.2d 777 (10th Cir. 1985) ............................ 35, 37
Gilfillan v. Philadelphia, 637 F.2d 924 (3d Cir.
1980) ........................................................................23
Gonzales v. North Township Lake County, 4 F.3d
1412 (7th Cir. 1993) ............................... 20, 23, 27, 35
Greater Houston Chapter of American Civil Liberties Union v. Eckels, 589 F. Supp. 222 (S.D.
Tex. 1984), reh’g denied, 763 F.2d 180 (5th Cir.
1985) .................................................................. 10, 21
Green v. Haskell County Board of Commissioners, 568 F.3d 784 (10th Cir. 2009) ...........................42
Harris v. City of Zion, 927 F.2d 1401 (7th Cir.
1991) ........................................................................23
Jewish War Veterans v. United States, 695
F. Supp. 3 (D.D.C. 1988) ...................................... 3, 20
King v. Richmond County, 331 F.3d 1271 (11th
Cir. 2003) .................................................................27

 viii
TABLE OF AUTHORITIES—Continued
Page
Kondrat’yev v. City of Pensacola, 2017 U.S. Dist.
LEXIS 203588 (N.D. Fla. June 19, 2017) appeal pending No. 17-13025 (11th Cir. 2018) ...........20
Larson v. Valente, 456 U.S. 228 (1982) .......................32
Lowe v. Eugene, 254 Or. 518 (1969) ............................37
Lynch v. Donnelly, 465 U.S. 668 (1984) .... 17, 22, 34, 35
McCreary County v. ACLU, 545 U.S. 844
(2005) ................................................. 2, 14, 17, 31, 32
Modrovich v. Allegheny County, 385 F.3d 397
(3d Cir. 2004) ...........................................................27
Mount Soledad Memorial Association v. Trunk,
567 U.S. 944 (2012) ...................................................9
Murray v. Austin, 947 F.2d 147 (5th Cir.
1991) ............................................................ 21, 22, 23
Robinson v. City of Edmond, 68 F.3d 1226 (10th
Cir. 1995) .................................................................27
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) ............ 20, 23, 24
Skoros v. City of New York, 437 F.3d 1 (2d Cir.
2006) ........................................................................18
Stone v. Graham, 449 U.S. 39 (1980) ..........................33
Trump v. Hawaii, 138 S. Ct. 2392 (2018) .....................1
Trunk v. City of San Diego, 629 F.3d 1099 (9th
Cir. 2011) ......................................................... passim

 ix
TABLE OF AUTHORITIES—Continued
Page
Trunk v. City of San Diego, 660 F.3d 1091 (9th
Cir. 2011) .................................................................19
Van Orden v. Perry, 545 U.S. 677
(2005) ............................................... 24, 28, 31, 33, 41
Virginia v. Black, 538 U.S. 343 (2003) ........................30
Wallace v. Jaffree, 472 U.S. 38 (1985) ...........................9
Walz v. Tax Commission, 397 U.S. 664 (1970) ............29
Weinbaum v. City of Las Cruces, 541 F.3d 1017
(10th Cir. 2008).................................................. 21, 25
West Virginia State Board of Education. v. Barnette, 319 U.S. 624 (1943) ........................................15
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I ...................................................31
RULES AND REGULATIONS
23 CFR § 710.403(a) ...................................................35
Sup. Ct. R. 10 ................................................................8
OTHER AUTHORITIES
H.R. Res. 15, 68th Cong. (1924) .............................. 3, 40
Hemant Mehta, Christians Are Harassing the
Atheist Lawyer Who Won the Pensacola Cross
Case, PATHEOS (June 21, 2017), https://perma.
cc/6KD6-LLYR .........................................................30

 x
TABLE OF AUTHORITIES—Continued
Page
Letter from James Madison to William Bradford
(April 1, 1774), http://bit.ly/2h57Xm5 ....................16
Pope Francis: The Cross Is the Gate of Salvation,
Vatican Radio (Mar. 12, 2017), http://bit.ly/
2hysfbS ....................................................................15
Thomas Jefferson, The Virginia Statute for Religious Freedom (Jan. 16, 1786), reprinted in
FOUNDING THE REPUBLIC: A DOCUMENTARY HISTORY (John J. Patrick ed., 1995) ..............................16

 1
JURISDICTION
This case is unripe for this Court’s review. No
final judgment has been entered. The Fourth Circuit
instead left the district court wide latitude on remand
to explore “arrangements that would not offend the
Constitution.” (Pet.App.31a-32a).
------------------------------------------------------------------

INCORPORATION BY REFERENCE
Two petitions were filed seeking review of the
same decision, the first filed by the American Legion
(“Legion”) (17-1717), and the second filed by the Maryland-National Capital Park and Planning Commission
(“Commission”). Due to substantial overlap, Respondents incorporate by reference their Brief in Opposition
to the Legion’s Petition (“Opp.”), and attempt to avoid
repetition herein.
------------------------------------------------------------------

INTRODUCTION
“ ‘The clearest command of the Establishment
Clause is that one religious denomination cannot be officially preferred over another.’ ” Trump v. Hawaii, 138
S. Ct. 2392, 2417 (2018) (quoting Larson v. Valente, 456
U.S. 228 (1982)). This Court has long acknowledged
that governmental actions that favor one religion over
others “inevitabl[y]” foster “hatred, disrespect and
even contempt of those who [hold] contrary beliefs.”
Engel v. Vitale, 370 U.S. 421, 431 (1962). For “nothing
does a better job of roiling society” than “when the

 2
government weighs in on one side of religious debate.”
McCreary County v. ACLU, 545 U.S. 844, 876 (2005).
This case, unfortunately, bears that out.
The Commission is prominently displaying a
massive Christian cross in the center of the busiest
intersection in Prince George’s County, Maryland
(the “Bladensburg Cross” or “Cross”).1 Originally called
the “Cavalry Cross” when it was constructed on land
owned by the Town of Bladensburg (“Town”), and
rededicated by the Commission in 1985 as a war
memorial for all veterans, the Commission’s Cross
discriminates against patriotic soldiers who are
not Christian, sending a callous message to nonChristians that Christians are worthy of veneration
while they may as well be forgotten. See County of
Allegheny v. ACLU, 492 U.S. 573, 615 n.61 (1989).
“The cross is of course the preeminent symbol of
Christianity.” Salazar v. Buono, 559 U.S. 700, 725
(2010) (Alito, J., concurring); see also id. at 747
(Stevens, J., dissenting) (“We have recognized the
significance of the Latin cross as a sectarian symbol,
and no participant in this litigation denies that
the cross bears that social meaning.”); Capitol Square
Review & Advisory Bd. v. Pinette, 515 U.S. 753, 776
(1995) (O’Connor, J., concurring) (“the cross is an especially potent sectarian symbol”); id. at 792 (Souter, J.,
concurring) (the cross is “the principal symbol of

1

(Pet.App.5a-10a)(J.A.33-34)(J.A.315)(J.A.360-62)(J.A.425)
(J.A.579)(J.A.1098)(J.A.1132)(J.A.1584).

 3
Christianity”); Allegheny, 492 U.S. at 661 (Kennedy, J.,
concurring and dissenting in part) (the Latin cross is a
“proselytiz[ing]” Christian symbol).
A Christian cross memorial does not commemorate,
and necessarily excludes, the “3,500 Jewish soldiers
[who] gave their lives for the United States in World
War I.” Buono, 559 U.S. at 726-27 (Alito, J., concurring).
See H.R. Res. 15, 68th Cong. at 1-6 (1924) (J.A.228097). The Jewish War Veterans organization has challenged war memorial crosses for this very reason. See
Trunk v. City of San Diego, 629 F.3d 1099, 1105 (9th
Cir. 2011); Jewish War Veterans v. United States, 695
F. Supp. 3 (D.D.C. 1988).
In the 1924 Congressional debate over grave
markers for American Soldiers in Europe, Hon. Emanuel Celler testified: “You have those 1,600 Jewish dead,
and if you put something other than the double triangle on their graves, . . . there might arise in the hearts
of the mothers and fathers of those boys some conflicting emotions.” The Chairman of the Committee on Military Affairs asked, “Why would it not be fitting and
proper to have just a nice marble slab, without either
the cross or this Star of David or anything else on it?”
Mr. Celler responded: “I do not think there would be
any objection if everybody would be treated alike.”2
The Executive Director of the Jewish Welfare
Board testified that the cross did not honor Jewish soldiers and that they too would prefer a plain slab to
2

(J.A.2282-83).

 4
represent all soldiers.3 He also clarified that there
were in excess of 2,500 Jewish war dead, not 1,600, and
that many Jewish graves were erroneously, and offensively, marked with crosses.4
It is undisputed that the Bladensburg Cross does
not honor non-Christian veterans.5 The Legion admitted that this Cross was never intended to commemorate Jewish soldiers,6 despite substantial Jewish
communities in Maryland and D.C.7 In 1985, the Commission officially “Rededicated” the Cross to all veterans, spending $100,000 on extensive renovations, yet
never attempted to make the monument inclusive “so
that it appropriately recognized the religious diversity
of the American soldiers who gave their lives” in service. Buono, 559 U.S. at 726-27 (Alito, J., concurring).
On the contrary, the Commission emphasized the
Cross’s exclusive Christian message by inviting a
Catholic priest to deliver prayers at the rededication
ceremony.8
In addition to disregarding Jewish soldiers, Humanist and atheist military groups, as well as other
non-Christian organizations, filed declarations and

3

(J.A.2289-90).
(J.A.2289).
5
(Pet.App.28a)(J.A.213)(J.A.300)(J.A.305)(J.A.1044-46)
(J.A.1082-84)(J.A.1437-38)(J.A.2280-97)(J.A.3261)(J.A.3269).
6
(Oral Arg. 23:05-23:37)(J.A.164)(J.A.771).
7
(J.A.212).
8
(J.A.362-65).
4

 5
amicus briefs contending that the Bladensburg Cross
does not represent them or their members.9
For instance, the president of the Military Religious Freedom Foundation, which has “clients from all
branches of the US military,” and represents “a myriad
faith and non-faith groups,” including “Jewish, Hindu,
Sikh, Buddhist, [and] Native American spiritualist,”
testified that the “Bladensburg Cross does not represent our tens of thousands of MRFF clients.”10
The Council on American Islamic Relations, the
nation’s largest Muslim civil rights organization, also
submitted a motion opposing the Bladensburg Cross
on the grounds that “Christian symbols do not represent Muslim service members.”11
------------------------------------------------------------------

COUNTERSTATEMENT OF THE CASE
The Commission’s statement is neither complete
nor accurate. Respondents offer this counterstatement
to address its more important omissions and errors.
First, the Commission recites the same bald claim
as the Legion, that the “memorial bears the shape of a
cross” solely to “evoke the grave markers on the battlefields of Europe.” (Pet.5). This is unsupported and indeed belied by the record. (Opp.9-11). Again, it is
9

(J.A.1044-46)(J.A.1082-84)(J.A.3408-12); see also (J.A.3261)
(J.A.3269)(4th Cir. Doc. 29-1).
10
(J.A.1082-83).
11
(J.A.3411-12).

 6
undisputed that the donors intended to build a “mammoth cross, a likeness of the Cross of Calvary, as described in the Bible.”12 The “Calvary Cross Memorial”
committee led fundraising efforts.13 The keynote
speaker at the Cross’s dedication ceremony proclaimed
the Cross to be “symbolic of Calvary.”14
The Commission omits any mention of “Calvary,”
and of the Cross’s famed designer, John Earley, and the
Catholic Shrine from which the Cross’s design borrowed heavily.15 This omission is confounding seeing as
the Commission was adamant at summary judgment
that a reasonable observer would be aware of “Earley’s
prominence.”16
Second, the Commission inaccurately contends
that it acquired the Cross to “address traffic safety
concerns” (Pet.7), neglecting the fact that the government owned the Cross from the outset. The Cross
was erected on Town property, with the Town’s approval, then taken over by the State Roads Commission for highway expansion, and then transferred to
the Commission in 1960 for the sole purpose of “future
repair and maintenance.”17 The Commission admitted:
“After completing the highway project, the Roads
12

(Pet.App.7a)(J.A.1115).
(J.A.1118).
14
(Pet.App.59a)(J.A.1130-34)(J.A.2508).
15
(J.A.628)(J.A.2486-87)(J.A.3312-13).
16
(Doc. 86 at 30).
17
(Pet.App.7a, 57a-63a)(J.A.78)(J.A.93-94)(J.A.1086)(J.A.1095)
(J.A.1393-94)(J.A.1450)(J.A.3219).
13

 7
Commission determined that there was excess land remaining that was no longer needed at the Memorial.”18
Third, the Commission states that “[n]o religious
ceremony has ever been held” at the Cross. (Pet.15).
But the District Court found “evidence supporting
[plaintiffs’] assertion that some religious services were
held at the Monument.” (Pet.App.62a). As the Fourth
Circuit noted, “Sunday worship services have at times
been held at the Cross.” (Pet.App.8a). See (J.A.1228).
Moreover, every ceremony held for the Cross—
including its fundraising drive, dedication, “50th
anniversary,” and rededication—featured Christian
clergy-led prayers.19 The Commission even invited
a Catholic priest to deliver prayers at the Cross’s
rededication, expressing a desire to “assimilate this
relationship again.”20 Since then, the Town and the Legion have co-sponsored annual services at the Cross
that regularly include prayers led by Christians.21
Lastly, it is undisputed that the Cross is the
Town’s most prominent monument.22 The Cross itself
has no secular features aside from a small “U.S.” star
in the center.23 The Commission stresses that the star
18

(Dist. Ct. Doc.86 at 5).
(Pet.App.7a-8a, 23a, 59a)(J.A.362-65)(J.A.1225-32)(J.A.126270)(J.A.1350)(J.A.1998)(J.A.2092-96).
20
(J.A.362).
21
(Pet.App.8a, 23a, 25a-26a)(J.A.840)(J.A.870-91)(J.A.12821343)(J.A.1803-12)(J.A.1847-50).
22
(Pet.App.24a, 28a)(J.A.37-40)(J.A.1753).
23
(Pet.App.24a)(J.A.34)(J.A.1098-99).
19

 8
is the “American Legion” symbol (Pet.6), yet government records refer to it only as a generic “gold star
bearing the letters ‘U.S.’ in red in the center.”24 While
“an American flag flies at one side” of the Cross
(Pet.6)(J.A.34), neither the star nor the flag negate the
Cross’s religious meaning, and both only fortify the appearance of government support for this massive
Christian symbol. (Pet.App.25a). See Allegheny, 492
U.S. at 600; Books v. City of Elkhart, 235 F.3d 292, 307
(7th Cir. 2000) (“the placement of the American Eagle
gripping the national colors at the top of the monument hardly detracts from the message of endorsement; rather, it specifically links religion . . . and civil
government”).
------------------------------------------------------------------

REASONS FOR DENYING THE WRIT
There are four reasons to deny certiorari. First,
the interlocutory posture makes this case unripe for
this Court’s review. Second, the Fourth Circuit’s ruling
is highly fact-specific, allows the Commission to retain
the historical aspect of the monument, and does not
threaten any other monument. Third, there is no Circuit split. Fourth, there is no conflict with this Court’s
precedents. Sup. Ct. R. 10.

24

(J.A.61)(J.A.326)(J.A.2991).

 9
I.

The case is unripe for this Court’s review.

As discussed in Respondents’ Opposition to the
Legion’s Petition, this case is not ripe for this Court’s
review, as no final judgment has been rendered and it
remains unclear precisely what action the government
must take on remand. (Opp.13-14). See Mount Soledad
Memorial Association v. Trunk, 567 U.S. 944, 945-46
(2012) (Alito, J., concurring in the denial of certiorari).
II.

The Fourth Circuit’s narrow fact-specific
decision neither hinders the government’s
ability to honor its war dead nor threatens
any other monument.
A. Modifying the monument to honor all
veterans advances religious liberty and
equality.

“ ‘The fullest realization of true religious liberty
requires that government . . . effect no favoritism
among sects or between religion and nonreligion.’ ”
Allegheny, 492 U.S. at 593 (citation omitted). See Board
of Education of Kiryas Joel Village School District v.
Grumet, 512 U.S. 687, 703 (1994) (recognizing the role
of courts in “safeguarding a principle at the heart of
the Establishment Clause, that government should not
prefer one religion to another, or religion to irreligion”).
The “individual’s freedom to choose his own creed
is the counterpart of his right to refrain from accepting
the creed established by the majority.” Wallace v. Jaffree, 472 U.S. 38, 52 (1985). “When the power, prestige,
and financial support of government is placed behind

 10
a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” Engel, 370
U.S. at 430-31. See Allegheny, 492 U.S. at 661 (Kennedy,
J., concurring in part and dissenting in part) (recognizing coercive effect of “the permanent erection of a large
Latin cross on the roof of city hall”).
Contrary to the Commission’s argument (Pet.33),
the Fourth Circuit’s decision “in no way hinder[s] the
county’s ability to honor its war dead.” Greater Houston Chapter of American Civil Liberties Union v. Eckels, 589 F. Supp. 222, 234 (S.D. Tex. 1984), reh’g denied,
763 F.2d 180 (5th Cir. 1985). “Indeed, there are countless ways that we can and should honor them, but
without the imprimatur of state-endorsed religion.”
Trunk, 629 F.3d at 1102. Notably, the county already
has a secular World War I memorial at the nearby
courthouse, unveiled a week after the Cross’s groundbreaking, bearing the same names as those on the
Cross’s plaque. (Opp.10).25
More importantly, the “opinion does not presuppose any particular result,” as the court remanded
“to explore alternative arrangements that would not
offend the Constitution.” (Pet.App.31a-32a). Justice
Alito sanctioned this approach in Buono, 559 U.S. at
726-27 (concurring). He noted that “[o]ne possible solution would have been to supplement the monument
on Sunrise Rock so that it appropriately recognized the
religious diversity of the American soldiers who gave
25

(J.A.206-08)(J.A.295)(J.A.1992).

 11
their lives in the First World War.” Id. Congress chose
instead to transfer the land, a curative measure Justice Alito deemed sufficient because “the new owner is
under no obligation to preserve the monument’s present design.” Id. at 728.
The Fourth Circuit’s decision likewise does not
“deprive the community of a historic landmark”
(Pet.33), as it leaves intact the historic pedestal containing the plaque, and even the concrete monument,
subject to a slight modification that would honor all
veterans. The Commission itself suggested that it
might be best to start from scratch, infra.
After spending $100,000 on renovations in 1985,
the Commission spent an additional $17,000 on routine maintenance, which proved futile.26 In 2008, the
Commission set aside $100,000 for substantial modifications because the Cross is “rapidly deteriorating”
with large chunks falling off, even posing a safety hazard.27
In 2009, the Commission reported: “There are two
cracks that are getting worse which potentially will
cause a face of the [Bladensburg] Cross to fall off.”28 In
2010, the Commission sought “Requests for Proposals,”

26

(Pet.App.8a, 30a, 63a)(J.A.360)(J.A.1108-10)(J.A.1655)
(J.A.1672)(J.A.2480)(J.A.2484).
27
(Pet.App.8a, 30a, 63a)(J.A.562-64)(J.A.1648-50)(J.A.1660)
(J.A.1668)(J.A.1672)(J.A.1687)(J.A.1698)(J.A.2158).
28
(J.A.1655).

 12
but none were within budget.29 As an official remarked:
“There were definitely some challenges with this procurement, so much so, that we ended up cancelling the
solicitation.”30
A 2010 Commission-funded report referred to the
Cross as a “public eyesore seen by hundreds of passing
motorists each day.”31
In 2012, a Commission official proclaimed via
email: “Wow. Looks like another big chunk fell off it, so
it may come down on its own!!”32
In November 2013, another official mused: “So, the
Peace Cross is falling down. . . . Making repairs to the
structure have not proven sustainable or helpful in the
long term. At what point does one stop making repairs,
and consider whether it makes more sense to start from
scratch or not . . . ?”33
In 2015, the Commission conducted a “crack survey” proving extensive work is urgently needed if the
Cross is to survive.34 The Commission’s designee testified in deposition: “As a matter of fact, the Peace Cross
is coming down now.”35
29

(J.A.1625)(J.A.1650-56); see also (J.A.569-79)(J.A.617)
(J.A.637)(J.A.1617-75)(J.A.1704).
30
(J.A.1675).
31
(J.A.1574).
32
(J.A.1668).
33
(J.A.1672) (emphasis added).
34
(J.A.1704)(J.A.2480-2502).
35
(J.A.2158).

 13
The Commission’s internal conversations reflecting apathy and even relief about the Cross coming
down on its own, supra,36 starkly contrast with its public statement that the Fourth Circuit’s “decision will
necessitate an act of shocking disrespect for the brave
souls of Prince George’s County.” (Pet.33). The Commission fails to explain how a slight alteration to this
severely imperiled monument—which may come down
on its own37—will do anything other than respect all
veterans, the stated intent of the Commission’s rededication in 1985.38
The Commission’s argument also contradicts its
theory of the case that the “shape” is somehow incidental or secondary to the memorial. (Pet.i, 2, 5, 17). Of
course, this case is about “the Christian symbol.”39 As
Judge Wynn observed: “If the Latin cross here at issue
is more overtly secular than sectarian, as the Commission and amici maintain, then their concern that altering or removing the monument would be ‘hostile’ to
religious beliefs is puzzling.”40 The Commission agreed
with Judge Wynn that the Cross does not just have “religious content,” but is instead “almost universal[ly]”
viewed “as a symbol of the crucifixion of Jesus
36

See also (J.A.1726) (noting disinterest in nominating the
Cross for Maryland preservation funding).
37
The northern arm is “the most deteriorated and damaged
section of the Cross,” and both arms exhibit “serious cracks” and
spalling. (J.A.2490-91)(J.A.2500)(J.A.1574)(J.A.1586-90)(J.A.2052).
38
(J.A.362)(J.A.1753).
39
(Oral Arg. 31:05-31:32).
40
(Pet.App.95a-96a).

 14
Christ.”41 Judge Wynn surmised, “when one characterizes it as simply having religious content, then those
who follow that have got to be feeling that cannot possibly be the case. It is much more than a religious content.”42 The Commission’s counsel agreed.43
B. The government’s Christian cross war
memorial co-opts spiritual content for
military purposes, offending many Christians.
The Fourth Circuit’s decision not only advances
religious liberty and equality for non-Christians, but
also advances religious freedom for Christians, as
many Christians believe the cross’s sacred status is
denigrated when the government co-opts it as a symbol
of war.44 “Voluntary religious belief and expression may
be as threatened when government takes the mantle
of religion upon itself as when government directly interferes with private religious practices.” McCreary,
545 U.S. at 883 (O’Connor, J., concurring).
The cross carries deeply significant meaning for
those of the Christian faith and “acts as a ‘short cut
from mind to mind’ for adherents who draw strength
from it.” Doe v. Elmbrook School District, 687 F.3d 840,
852 (7th Cir. 2012) (en banc) (quoting West Virginia
41

(Oral Arg. 38:55-40:34).
(Oral Arg. 40:00-40:21).
43
(Oral Arg. 40:21-40:24).
44
(Pet.App.21a, 89a-93a)(J.A.188)(J.A.1083)(J.A.1443-45)
(Oral Arg. 27:25-33:00, 38:00-41:00).
42

 15
State Board of Education. v. Barnette, 319 U.S. 624, 632
(1943)).
The Fourth Circuit correctly observed that the
argument that the Latin cross “symbolizes anything
other than Christianity may be deemed offensive to
Christians.” (Pet.App.21a). Judge Wynn believed it
would “infringe on intensely personal and sacred questions of religious meaning and belief.” (Pet.App.90a). In
response to the Legion’s statement that a religious
symbol “can also acquire secular significance,” Judge
Wynn admonished: “I would hope you don’t water it
down too much.”45 He added: “I don’t think the cross
has secular meaning. That’s just a personal aside but I
actually think it’s kind of offensive to think that saying
a cross is just a secular symbol of something else.”46
Reverend Brian Adams, pastor of Mount Rainier
Christian Church, expressed a similar sentiment in
2012 about the Bladensburg Cross:
[I]t is the symbol of the son of God dying
peacefully. . . . I believe that using the cross as
a symbol of what our military did is blasphemy, equivalent to taking the Lord’s name
in vain, using the cross where God and Christ
would not want it to be used. The [Bladensburg] Cross is there as a Christian symbol.47
See also Pope Francis: The Cross Is the Gate of Salvation,
Vatican Radio (Mar. 12, 2017), http://bit.ly/2hysfbS
45
46
47

(Oral Arg. 31:16-32:00).
(Oral Arg. 31:35-32:25).
(J.A.1443-45).

 16
(“The Christian Cross is not something to hang in the
house ‘to tie the room together’ . . . or an ornament to
wear, but a call to that love, with which Jesus sacrificed
Himself to save humanity from sin and evil.”).
In recognition “that a union of government and religion tends to destroy government and to degrade religion,” the Establishment Clause “stands as an
expression of principle on the part of the Founders of
our Constitution that religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by
a civil magistrate.” Engel, 370 U.S. at 431-32. James
Madison viewed governmental support for religion as
“[r]eligious bondage [that] shackles and debilitates the
mind and unfits it for every noble enterprize.”48
Thomas Jefferson agreed that governmental religious
favoritism “tends only to corrupt the principles of that
very Religion it is meant to encourage, by bribing with
a monopoly of worldly honours and emoluments, those
who will externally profess and conform to it.”49
C. No other monument is affected by the
Fourth Circuit’s fact-intensive ruling.
The Fourth Circuit made clear that its “decision is
confined to the unique facts at hand.” (Pet.App.29a).
This Court’s precedents indeed require that each
48

Letter from James Madison to William Bradford (April 1,
1774), http://bit.ly/2h57Xm5.
49
Thomas Jefferson, The Virginia Statute for Religious Freedom (Jan. 16, 1786), reprinted in FOUNDING THE REPUBLIC: A
DOCUMENTARY HISTORY 94-95 (John J. Patrick ed., 1995).

 17
display be “judged in its unique circumstances.” Lynch
v. Donnelly, 465 U.S. 668, 694 (1984) (O’Connor, J., concurring). See McCreary, 545 U.S. at 867-68. The Commission’s argument that the decision threatens other
monuments is therefore unavailing. (Pet.33-35). Like
the Legion, the Commission failed to identify a single
war memorial cross as prominent, both in terms of size
and placement, as the Bladensburg Cross. (Opp.32).
The Fourth Circuit specifically distinguished the
crosses in Arlington Cemetery—the Canadian Cross of
Sacrifice and the Argonne Cross, and a cross commemorating the Mexican Civil War—(Pet.App.29a), as did
the Ninth Circuit in Trunk. “None of these crosses is a
prominent or predominant feature of the cemetery.”
629 F.3d at 1114-15. “All three crosses stand among, if
not immediately next to, the countless headstones of
soldiers buried in Arlington and alongside a large
number of other monuments.” Id.
“Much the same can be said for the Irish Brigade
Monument and the monument to the 142nd Pennsylvania Infantry,” which “are on equal footing with [numerous] other monuments and do not dominate the
landscape.” Id. at 1124. As Dr. Piehler testified, in rare
cases where crosses “have been used on war memorials
built outside of national cemeteries,” they usually
serve as a “distinctive ethnic marker.”50 The Irish

50

(J.A.193).

 18
Brigade Monument, for instance, is a Celtic cross bearing the seal of Ireland and an Irish bloodhound.51
The centrality and prominence of the Bladensburg
Cross distinguishes it from the foregoing crosses.
While the Commission argues that the Cross is situated in a “place for ‘commemorating and memorializing veterans,’ no less than Arlington,” (Pet.34), it also
insists that the “Cross is situated on a highway median
that ‘suggests little or nothing of the sacred.’ ” (Pet.15).
Unlike the crosses at Arlington, there are no walkways
to the Bladensburg Cross, and due to its placement
within a traffic island of a major three-highway intersection, events held at the Cross necessitate police
presence to facilitate pedestrian access.52
The Commission also argues that “the notion that
more religious symbolism would have saved the Cross
from invalidity” is “absurd.” (Pet.35). The Circuits
would disagree. E.g., Skoros v. City of New York, 437
F.3d 1, 25 (2d Cir. 2006) (“[W]hen menorahs or stars
and crescents are displayed, their religious significance is appropriately neutralized by myriad accompanying symbols of other winter holidays having
nonreligious as well as religious origins.”). In any
event, it would be imprudent for anyone to challenge
the Arlington crosses in light of the numerous statements from multiple Circuits indicating that they do
not offend the Constitution.
51

(J.A.193)(J.A.2254).
(Pet.App.25a)(J.A.37)(J.A.140)(J.A.1155)(J.A.1583)
(J.A.1372)(J.A.2485).
52

 19
The Commission only identifies two other crosses
within the Fourth Circuit. (Pet.34). The cross in Towson, Maryland, however, is one-third the size of
Bladensburg Cross and does not tower over a busy
highway intersection.53 The small Cape Henry Cross
was originally installed in 1607 by English colonists
and now stands in a museum-like setting, no larger
than the numerous exhibits and monuments in historic Jamestown and Yorktown. See Trunk, 629 F.3d at
1115 n.16 (distinguishing Cape Henry Cross).
The Commission goes on to cite Judge Bea’s dissent, stating that he gave “hundreds” of other examples
(Pet.34), but in fact, cited the same Arlington and Gettysburg crosses discussed above, one cross in New
Mexico, two in California, the Father Junipero Serra
statue (one of one hundred statues in National Statuary Hall), and lastly, “114 Civil War monuments.”
Trunk v. City of San Diego, 660 F.3d 1091, 1099-100
(9th Cir. 2011) (Bea, J., dissenting from denial of
rehearing en banc). “Only 114” of “3,500 [Civil War]
monuments include some kind of cross, however, and
the cross is generally ‘subordinated to symbols that
emphasize American nationalism and sacrifice of the
fallen.’ ” Trunk, 629 F.3d at 1113.

53

(J.A.2685).

 20
III. There is no Circuit split.
A. The Circuits agree that a Christian cross
does not serve as a secular symbol of
commemoration.
Every federal case involving the constitutionality
of a government cross monument displayed as a memorial found the cross unconstitutional, including decisions by the Fourth, Seventh, Ninth, and Tenth
Circuits. (Opp.15-19). See Trunk, 629 F.3d 1099; American Atheists, Inc. v. Duncan, 616 F.3d 1145 (10th Cir.
2010); Buono v. Norton, 371 F.3d 543 (9th Cir. 2004);
Separation of Church & State Comm. v. City of Eugene,
93 F.3d 617 (9th Cir. 1996); Ellis v. La Mesa, 990 F.2d
1518 (9th Cir. 1993); Gonzales v. North Township Lake
County, 4 F.3d 1412 (7th Cir. 1993); American Humanist Association v. Lake Elsinore, 2014 U.S. Dist. LEXIS
25180 (C.D. Cal. 2014); Jewish War Veterans, 695
F. Supp. 3; Eckels, 589 F. Supp. 222; see also Cabral v.
City of Evansville, 958 F. Supp. 2d 1018 (S.D. Ind.
2013), dismissed on other grounds, 759 F.3d 639 (7th
Cir. 2014) (crosses in veterans park); Kondrat’yev v.
City of Pensacola, 2017 U.S. Dist. LEXIS 203588, at *21
n.4 (N.D. Fla. June 19, 2017) appeal pending No. 1713025 (11th Cir. 2018) (finding the city’s argument that
“the Bayview Cross is a war memorial” irrelevant in
light of the “numerous appellate and district court
cases ordering the removal of war memorial crosses”).
Again, there are thirty federal cases holding cross
displays unconstitutional in a wide range of contexts,
including cases by the Third, Fourth, Seventh, Ninth,
Tenth, and Eleventh Circuits, and only three outliers.

 21
(Opp.15-20). See American Atheists, Inc. v. Port Authority, 760 F.3d 227 (2d Cir. 2014); Weinbaum v. City of Las
Cruces, 541 F.3d 1017 (10th Cir. 2008); Murray v. Austin, 947 F.2d 147 (5th Cir. 1991). And these outliers are
attributable to highly unique facts rather than legal
disagreement. (Opp.19-20). Yet the Commission relies
on these outliers, as well as Briggs v. Mississippi, 331
F.3d 499, 503-06 (5th Cir. 2003) (Pet.25-28), which the
Legion omitted due to its obvious irrelevance. Briggs
involved the Confederate flag, not the Latin cross, and
did not concern “any religious symbolism.” Id.
B. The Commission misconstrues the Circuits’ decisions to manufacture a split.
1. The Second and Fifth Circuits never
ruled on the constitutionality of a
war memorial cross.
The Commission’s argument that the “circuits have
sharply split as to the permissibility of ever using
the cross as a commemorative symbol” is meritless.
(Pet.22). The Circuits are in complete agreement that
a “memorial cross” only “memorializes the death of a
Christian.” Duncan, 616 F.3d at 1161, sending “a
strong message of endorsement and exclusion.” Trunk,
629 F.3d at 1124-25. There is no contrary authority. See
also Allegheny, 492 U.S. at 615 n.61 (noting that a “war
memorial containing crosses and a Star of David unconstitutionally favored Christianity and Judaism”)
(citing Eckels, 589 F. Supp. 222). The Commission
nonetheless claims a “split” between the “Ninth, Tenth,

 22
and Fourth Circuits,” and the “Second and Fifth Circuits.” (Pet.28). This “split” is illusory.
The Commission states that in Port Authority, the
Second Circuit upheld “the commemorative use of the
Latin cross.” (Pet.28). But the Second Circuit did not
say anything about a commemorative use of the cross.
It ruled that “a reasonable observer would view the
primary effect of displaying The Cross at Ground Zero,
amid hundreds of other (mostly secular) artifacts, to
be ensuring historical completeness, not promoting religion.” 760 F.3d at 243. The court relied on Lynch’s
analogy that an “exhibition of literally hundreds of religious paintings in governmentally supported museums” does not endorse religion. 465 U.S. at 683.
The Bladensburg Cross is not a naturally occurring artifact displayed in a museum, but rather, a massive “Calvary Cross,” installed in isolation on a traffic
island of a busy intersection where the government’s
imprimatur is unmistakable. (Pet.App.94a).
The Commission then contends that the Fifth Circuit in Murray held “that a ‘Christian cross’ . . . may
simply serve to commemorate a municipality’s ‘unique
role and history.’ ” (Pet.29). What the Fifth Circuit actually held was very different: “Taken as a whole, the
insignia has the principal or primary effect of identifying city activity and property and promoting Austin’s
unique role and history.” 947 F.2d at 155 (emphasis
added). It said nothing about commemoration. Moreover, the court deemed it significant that “the cross in
Austin’s insignia occupies a displacement area of only

 23
.4%-.12%.” Id. at 157 n.11. This distinguished it from
the Seventh and Tenth Circuits’ cases finding prominent crosses in seals unconstitutional. Id. at 156-57.
(Opp.20).
The Commission also downplays the overwhelming authority against it by focusing only on the Fourth,
Ninth, and Tenth Circuits’ cross cases, while ignoring
the Third, Seventh, and Eleventh Circuits’ cases finding crosses unconstitutional. E.g., ACLU v. Rabun
County Chamber of Commerce, Inc., 698 F.2d 1098
(11th Cir. 1983) (privately-donated cross in state park);
Gonzales, 4 F.3d 1412 (war memorial); Harris v. City of
Zion, 927 F.2d 1401 (7th Cir. 1991) (cross in insignia);
ACLU v. City of St. Charles, 794 F.2d 265 (7th Cir.
1986) (lighted cross as part of holiday display); Gilfillan v. Philadelphia, 637 F.2d 924 (3d Cir. 1980) (cross
on platform funded by the government). In Harris, for
instance, the Seventh Circuit ruled that the cross
“transcend[s] mere commemoration” and promotes
only the “Christian faith.” 927 F.2d at 1415.
2. The Fourth, Ninth, and Tenth Circuits’ decisions do not impose a per
se prohibition against crosses.
In addition to misrepresenting the Second and
Fifth Circuits’ decisions, the Commission also misrepresents the Fourth, Ninth, and Tenth Circuits’ rulings
to forge a “split.” It contends that the Ninth Circuit has
been applying “a virtual per se prohibition on crossshaped monuments,” first citing Eugene, 93 F.3d 617.

 24
Although the analysis is short, Judge O’Scannlain
evaluated the history, context, and setting of the war
memorial cross and still found that it violated the Establishment Clause. Id. at 625-26 (concurring). He reasoned that the “City’s use of a cross to memorialize the
war dead may lead observers to believe that the City
has chosen to honor only Christian veterans.” Id.
Far from adopting a categorical approach, the
Ninth Circuit in Trunk understood that “[s]ecular
elements, coupled with the history and physical setting
of a monument or display, can—but do not always—
transform sectarian symbols” into non-endorsing
displays. 629 F.3d at 1117. The Ninth Circuit then
conducted an extensive analysis, looking to the “finegrained, factually specific features of the Memorial,
including the meaning or meanings of the Latin cross
at the Memorial’s center, the Memorial’s history, its
secularizing elements, its physical setting, and the way
the Memorial is used.” Id. at 1110 (citing Van Orden v.
Perry, 545 U.S. 677, 700-02 (2005); Allegheny, 492 U.S.
at 598-602). Taking all of these factors into account, id.
at 1105-25, the court concluded that “the Memorial today remains a predominantly religious symbol.” Id. at
1110.
The Ninth Circuit began its analysis by acknowledging that the “principle that the cross represents
Christianity is not an absolute one.” Id. at 1111. It
then devoted sixteen paragraphs to the use of crosses
in war memorials and found that nothing supported
the position that the Latin cross possesses “an

 25
ancillary meaning as a secular or non-sectarian war
memorial.” Id. at 1116.
The court did not stop there: “Our conclusion that
the Latin cross is a Christian religious symbol of remembrance or memorialization does not, of course, end
the matter.” Id. at 1117. But when looking to the cross’s
history, it found that, just as here, the cross has a “long
history of religious use and symbolism that is inextricably intertwined with its commemorative message.”
Id. at 1118. (Pet.App.7a-8a, 23a). Turning to the physical setting, the court found that the “Cross physically
dominates the site.” Id. at 1122-23. And its “central position” among later-added secular displays intensified
the cross’s “sectarian message.” Id. at 1124.
Inexplicably, the Commission asserts that the
“Tenth Circuit has taken a similarly categorical approach,” citing Duncan yet ignoring Weinbaum.
(Pet.24) (emphasis added). But in Duncan, the Tenth
Circuit, like the Ninth Circuit, engaged in a highly detailed analysis of the crosses’ purpose, context, history,
and secularizing features. 616 F.3d at 1159-64. The
court recognized that “[c]ontext can determine the permissibility of displays of religious symbols on public
property.” Id. at 1159 (citing Allegheny, 492 U.S. at 598;
Weinbaum, 541 F.3d at 1035). After evaluating their
entire context and history, the court concluded that
neither “sufficiently diminish[es] the crosses’s message of government’s endorsement of Christianity.” Id.
at 1164.

 26
The Commission’s portrayal of the Fourth Circuit’s decision as a categorical approach is equally
flawed. (Pet.25). Again, the Fourth Circuit employed a
detailed fifteen-paragraph analysis consisting of “the
entire context and history of the Cross, spanning from
its origin to the present,” including its context and
meaning, factual background and history, appearance,
and physical setting. (Pet.App.28a); see (Pet.App.18a29a). (Opp.21-22, 26-32). It found that these “factors
collectively weigh in favor of concluding that the Cross
endorses Christianity—not only above all other faiths,
but also to their exclusion.” (Pet.App.28a).
C. The Circuits do not disagree on what
knowledge to attribute to the reasonable observer.
Like the Legion, the Commission attempts to manufacture a split by arguing that “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.” (Pet.29). But
instead, both Circuits found that the outcome would
not be different even if the reasonable observer could
read the detailed plaques on the respective cross displays. (Opp.21-22).
The Tenth Circuit in Duncan “agree[d] that a reasonable observer would recognize these memorial
crosses as symbols of death,” but disagreed “that this
nullifies their religious sectarian content.” 616 F.3d
at 1160-61. The Fourth Circuit similarly imputed

 27
knowledge upon the reasonable observer that would be
unknown to an “ordinary ‘passerby’ ” including the fact
the Cross was originally “dedicated to 49 World War I
veterans.” (Pet.App.28a) (Opp.22).
More importantly, the Third, Sixth, and Eleventh
Circuits—those that the Commission claims are in
conflict with the Fourth and Tenth (Pet.29-30)—agree
with the Fourth and Tenth Circuits that size, prominence, and visibility are overriding considerations in
the reasonable observer analysis. E.g., King v. Richmond County, 331 F.3d 1271, 1285 (11th Cir. 2003)
(“The caselaw shows that exclusively religious symbols, such as a cross, will almost always render a governmental seal unconstitutional, no matter how small
the religious symbol is. . . . Size and placement are,
however, factors to consider in the overall effect-prong
analysis.”); ACLU of Kentucky v. Mercer County, 432
F.3d 624, 637 (6th Cir. 2005) (upholding Ten Commandments because it was displayed no “more prominently than the other items in the display”); Adland v.
Russ, 307 F.3d 471, 486 (6th Cir. 2002) (finding display
unconstitutional due to “its prominent placement”);
Modrovich v. Allegheny County, 385 F.3d 397, 408 (3d
Cir. 2004) (upholding display because it was “no larger
than” the plaque and the text could not be “viewed
from across the street”); Robinson v. City of Edmond,
68 F.3d 1226, 1232 n.11 (10th Cir. 1995) (“the visibility
of the cross was significant”); see also St. Charles, 794
F.2d at 267 (the cross was “an overpowering feature”);
Gonzales, 4 F.3d at 1414 (the cross was in a “busy intersection . . . [and] visible to virtually anyone”).

 28
D. The Circuits do not disagree on the relevance of longevity and history in cross
cases.
The Commission’s final “split” argument pertains
to Van Orden. It maintains that Circuits are divided
“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.” (Pet.31).
This argument rests on an incomplete account of
Justice Breyer’s concurrence. Justice Breyer only considered the lack of legal challenges relevant to a “borderline case.” 545 U.S. at 700-03. He deemed the Texas
display a “borderline” case because the Ten Commandments have a dual secular meaning tied to our nation’s
foundation of lawmaking, and that secular meaning
predominated when displayed inline with numerous
equal-sized, similarly-themed secular monuments. Id.
And it was not just the absence of any legal challenge,
but the fact that the display had not been used in a
religious manner, there was no religious motive on the
part of the private donor, and there was no indication
that the delay was “due to a climate of intimidation.”
Id. (Opp.32-35).
To be sure, this Court has not applied Justice
Breyer’s “borderline case” rationale to any other religious display, let alone to a massive Latin cross that
dominates its surroundings. This Court has instead
held that “no one acquires a vested or protected right

 29
in violation of the Constitution by long use.” Walz v.
Tax Commission, 397 U.S. 664, 678 (1970).
The Commission declares that the “Ninth and
Fourth Circuits have openly rejected this portion of
Justice Breyer’s controlling concurrence.” (Pet.31). Yet
the Ninth Circuit in Card v. City of Everett upheld a
Ten Commandments monument under Van Orden relying heavily upon the lack of legal complaints. 520
F.3d 1009, 1021 (9th Cir. 2008).
Both the Ninth Circuit in Trunk, and the Fourth
Circuit below gave this portion of Justice Breyer’s concurrence considerable weight. Both Circuits simply
found that, unlike in Van Orden and other Ten Commandments cases (Pet.31-32), a climate of intimidation
explained the lack of earlier challenges to the respective massive Christian cross war memorials. See
Trunk, 629 F.3d at 1122 (observing that “La Jolla’s
anti-Semitic history” explained the “lack of complaint”).
The Fourth Circuit accurately observed: “[A] person who dared bring a challenge to the Cross for much
of those 90 years would have faced possible rebuke. For
example, atheists were forbidden from holding public
office [in Maryland] until the Supreme Court’s intervention in the 1960’s.” (Pet.App.23a-24a). It added that
the Maryland “constitution still contains the offending
provision.” (Pet.App.24a).
Dr. Piehler further testified that the Bladensburg
Cross was erected in an era and region where the cross
was “appropriated by the Ku Klux Klan as a sectarian

 30
symbol designed to intimidate Jews, Roman Catholics,
and African Americans.”54 The year the Cross was dedicated, the Klan marched from “the peace cross at
Bladensburg to the fiery cross at Lanham.”55 Klansmen also conducted a full “Ku Klux Klan” funeral less
than a mile away from the unfinished Cross in 1924.56
See generally Virginia v. Black, 538 U.S. 343, 393 (2003)
(Thomas, J., dissenting) (discussing the intimidating
nature of cross burnings in neighboring Virginia in the
1920s).
“A number of Klansmen were members of the
American Legion during this era.”57 Tellingly, “[n]o
rabbi or Jewish leader took part in the dedication of
the [Bladensburg] Cross despite the close proximity” to
“substantial Jewish communities.”58 “For most Jews,
especially observant Jews, it would be surprising if
they did not view the Bladensburg Peace Cross as an
overtly hostile Christian symbol.”59
Regrettably, a strong climate of intimidation still
persists today, as evidenced by a mere sample of
threats and vitriol directed at plaintiffs and their counsel for bringing this case.60 See also Hemant Mehta,
54

(J.A.188)(J.A.211-13)(J.A.1241-48).
(J.A.1245)(J.A.212).
56
(J.A.1242)(J.A.211).
57
(J.A.212).
58
(J.A.212).
59
(J.A.213).
60
(J.A.1427-30)(J.A.1388-93)(J.A.1404)(J.A.1414). For security reasons, death threats against counsel were reported to the
police and not documented on the record.
55

 31
Christians Are Harassing the Atheist Lawyer Who Won
the Pensacola Cross Case, PATHEOS (June 21, 2017),
https://perma.cc/6KD6-LLYR (discussing threats against
Respondents’ counsel, Monica L. Miller, in similar
cross case).
If anything, the absence of prior lawsuits is evidence that the community perceives the “town’s most
prominent symbol” (J.A.1753)—a 40-foot-tall Christian
cross government-designated war memorial towering
over the county’s busiest intersection—as the government placing “Christianity above other faiths, views
being American and Christian as one in the same, or
both.” (Pet.App.31a). The risk of “social ostracism can
be powerfully deterrent.” Van Orden, 545 U.S. at 747
(O’Connor, J., dissenting).
IV. The Fourth Circuit reached the correct
result in accordance with this Court’s
precedents.
“The First Amendment mandates government
neutrality between religion and religion, and between
religion and non-religion.” Epperson v. Arkansas, 393
U.S. 97, 104 (1968). The “principle of neutrality has
provided a good sense of direction” to courts, and a necessary one, because it “responds to one of the major
concerns that prompted adoption of the Religion
Clauses.” McCreary, 545 U.S. at 875-76. The Founders
“knew the anguish, hardship and bitter strife that
could come when zealous religious groups struggled
with one another to obtain the Government’s stamp of

 32
approval.” Engel, 370 U.S. at 429. They knew “from bitter personal experience,” that “whenever government
had allied itself with one particular form of religion,
the inevitable result had been that it had incurred the
hatred, disrespect and even contempt of those who
held contrary beliefs.” Id. at 431. That same “history
showed that many people had lost their respect for any
religion that had relied upon the support of government to spread its faith.” Id.
To preserve the religious neutrality “clearly manifested in the history and logic of the Establishment
Clause,” Larson, 456 U.S. at 246, this Court has agreed
“upon the relevant constitutional principles: the government’s use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs,
and the effect of the government’s use of religious symbolism depends upon its context.” Allegheny, 492 U.S.
at 597. See Buono, 559 U.S. at 721 (plurality) (reiterating the importance of “context” and “consequences” in
religious display analysis).
This context-driven approach produces consistent
results. A potent religious symbol that dominates its
surroundings is more likely to impermissibly align
the government with religion, Engel, 370 U.S. at 429,
than religious content integrated into a larger secular
display. Compare McCreary, 545 U.S. at 881 (Ten Commandments held unconstitutional where it was initially installed on its own and its religious meaning
was underscored at dedication ceremony), Allegheny,
492 U.S. at 598-99 (crèche in courthouse held unconstitutional because of its centrality and prominence), and

 33
Stone v. Graham, 449 U.S. 39, 42 (1980) (Ten Commandments held unconstitutional in public school
context), with Van Orden, 545 U.S. at 700-02 (Breyer,
J., concurring) (6-foot-tall Ten Commandments upheld
where it was added to an array of 16 equal-sized monuments and 21 historical markers), Allegheny, 492 U.S.
at 616-17 (menorah upheld because it was dwarfed by
adjacent Christmas tree and not as religiously symbolic as a crèche or cross), and Lynch, 465 U.S. at 671
(crèche in private park upheld because it was dominated by secular holiday symbols).
Importantly, in Allegheny, Justice Kennedy had no
“doubt” that the Establishment “Clause forbids a city
to permit the permanent erection of a large Latin cross
on the roof of city hall.” 492 U.S. at 661 (concurring
and dissenting in part). He explained that “such an
obtrusive year-round religious display would place the
government’s weight behind an obvious effort to proselytize on behalf of a particular religion.” Id. (citations
omitted).
The Fourth Circuit’s decision harmonizes with the
foregoing precedents. As the court found, “the Commission is displaying the hallmark symbol of Christianity
in a manner that dominates its surroundings and not
only overwhelms all other monuments at the park, but
also excludes all other religious tenets.” (Pet.App.31a).
The display “aggrandizes the Latin cross in a manner
that says to any reasonable observer that the Commission either places Christianity above other faiths,
views being American and Christian as one in the

 34
same, or both.” (Pet.App.31a). The Commission failed
to show otherwise, infra.
A. There is no conflict with Lynch.
The Commission relies on Lynch for the notion
that “passive displays” may “constitutionally employ
religious symbols.” (Pet.3). This 40-foot-tall Christian
cross does not simply “employ religious symbols.” It is
a religious symbol, and the Christian symbol.
In Lynch, the temporary crèche placed in a private
park was de minimis in a display that included “among
other things, a Santa Claus house, reindeer pulling
Santa’s sleigh, candy-striped poles, a Christmas tree,
carolers, cutout figures representing such characters
as a clown, an elephant, and a teddy bear, hundreds
of colored lights, [and] a large banner that reads
‘SEASONS GREETINGS.’ ” 465 U.S. at 671. The Court
found that, viewed with the rest of the conspicuously
commercial display, the inclusion of a small nativity
did not “taint” the city’s exhibit but merely represented
a symbol of a secularized “National Holiday.” Id. at
681-82, 686.
Conversely, in Allegheny, the crèche was featured
in a courthouse lobby, somewhat removed from secular
holiday symbols exhibited elsewhere in the building.
492 U.S. at 598. The Court held it unconstitutional because “unlike in Lynch, nothing in the context . . . detracts from the crèche’s religious message.” Id. By
“permitting the ‘display of the crèche in this particular
physical setting,’ ” the Court found, “the county sends

 35
an unmistakable message that it supports and promotes the Christian praise to God that is the crèche’s
religious message.” Id. at 600. The Court explained:
“No viewer could reasonably think that it occupies this
location without the support and approval of the government.” Id. at 599.
No reasonable observer could reasonably think
that the 40-foot-tall Bladensburg Cross, standing
alone in a traffic island, “occupies this location without
the support and approval of the government” either. Id.
This is especially so considering that placing a sign,
memorial, or other property within state highway
right-of-ways is prohibited by the Maryland State
Highway Administration, 23 CFR § 710.403(a).
Additionally, because this monolithic Christian
cross is not a small symbol of a secularized holiday, but
the preeminent symbol of Christianity, and because it
is “viewed year-round,” the Cross “brings together
church and state in a manner that suggests their alliance . . . even more ardently than the unconstitutional
crèche display[ ] in . . . Allegheny.” Harris, 927 F.2d at
1412. See also Friedman v. Board of County Commissioners, 781 F.2d 777, 782 (10th Cir. 1985) (en banc)
(“This [cross] is not like the crèche display upheld in
Lynch.”); Gonzales, 4 F.3d at 1423 (the cross was “not
seasonally displayed in conjunction with other holiday
symbols”).
In St. Charles, Judge Posner, writing for the Seventh Circuit, distinguished Lynch’s crèche from an 18foot cross bar lit up to form a Latin cross as part of a

 36
city’s multifaceted holiday display. 794 F.2d at 270-72.
The “cross unmistakably signifies Christianity”
whereas the crèche is a “mixed case.” Id. The court reasoned, “Christmas is a national holiday, celebrated by
nonobservant Christians and many non-Christians.”
Id. But “the Latin cross has not lost its Christian identity.” Id. The Tenth Circuit agreed that “[u]nlike
Christmas,” there is no evidence “that the cross has
been widely embraced by non-Christians as a secular
symbol of death.” Duncan, 616 F.3d at 1161-62.
B. There is no conflict with Buono.
According to the Commission, the Fourth Circuit’s
decision “flouts this Court’s directive” in “Buono” that
the “Establishment Clause ‘does not require eradication of all religious symbols in the public realm.’ ”
(Pet.12). Again, Buono did not make any such “directive.” (Opp.36-38). The plurality warned litigants
that “this case is ill suited for announcing categorical
rules,” and the Court was not “making sweeping pronouncements.” 559 U.S. at 722.
Of course, merely because this Court stated, in
passing, that the Establishment Clause does not require the eradication of all religious symbols does not
thereby mean, as the Commission contends, that all
religious symbols are allowed. To the contrary, in
Buono, Justice Kennedy reaffirmed his statement in
Allegheny: “ ‘[T]he [Establishment] Clause forbids a
city to permit the permanent erection of a large Latin
cross on the roof of city hall . . . because such an

 37
obtrusive year-round religious display would place the
government’s weight behind an obvious effort to proselytize on behalf of a particular religion.’ ” 559 U.S. at
715 (quoting 492 U.S. at 661).
And in Allegheny, Justice Kennedy cited three
cases to support this proposition, Freidman, involving
a “Latin cross on official county seal,” and Rabun and
Eugene, both involving a “cross erected in public park.”
492 U.S. at 661 (citing Friedman, 781 F.2d 777; Rabun,
698 F.2d 1098; Lowe v. Eugene, 254 Or. 518 (1969)). In
Buono, Justice Kennedy contrasted these three examples with the Mojave cross, noting that the “[p]lacement of the cross on Government-owned land was not
an attempt to set the imprimatur of the state on a particular creed.” 559 U.S. at 715.
Justice Alito agreed that the absence of government imprimatur was critical. 559 U.S. at 724-25 (concurring). He explained that “in this part of the country
. . . boundaries between Government and private land
are often not marked.” Id. Private citizens “took it upon
themselves to place their monument on that spot, apparently without obtaining approval from any federal
officials, and this use of federal land seems to have
gone largely unnoticed for many years, in all likelihood
due to the spot’s remote and rugged location.” Id. (emphasis added). Justice Alito noted that it would be different if a cross were constructed as “an official World
War I memorial on the National Mall.” Id. at 728.
The Bladensburg Cross was installed on Town
property, with the Town’s approval and involvement, in

 38
the middle of a highway intersection.61 Local, state,
and federal officials actively participated in the Cross’s
groundbreaking and dedication ceremonies.62 Indeed,
“major state and county government officials” have
been actively involved in nearly every event held at the
Cross since its groundbreaking.63
And unlike in Buono, 559 U.S. at 715, this Cross
was emplaced because of its religious meaning. The intent was to build a “mammoth cross, a likeness of the
Cross of Calvary, as described in the Bible.”64 The
Cross’s Christian message was emphasized at its dedication ceremony, both by the keynote address proclaiming it to be “symbolic of Calvary,” and by the
multiple prayers led by Christian clergy.65
The Commission relies heavily on Buono, 559 U.S.
at 720-21, to support its position that the Bladensburg
Cross does not endorse Christianity. (Pet.13). But the
plurality was referring to Congress’s land transfer
statute, and explained that courts “do not inquire into
‘reasonable observer’ perceptions with respect to objects on private land.” Id. at 720. The plurality noted
that even if the Establishment Clause applied, the
61

(Pet.App.7a, 56a-57a)(J.A.78)(J.A.1086)(J.A.1115-18)(J.A.1450)
(J.A.1992-94).
62
(Pet.App.7a, 57a, 59a)(J.A.1120)(J.A.1130-34)(J.A.1222)
(J.A.1880)(J.A.1970)(J.A.1991)(J.A.2508).
63
(J.A.1753)(J.A.137-38)(J.A.356-65)(J.A.383)(J.A.385-420)
(J.A.834-40)(J.A.1225-32)(J.A.1266-70)(J.A.2092)(J.A.2095-96)
(J.A.1998).
64
(Pet.App.7a)(J.A.1115-20).
65
(Pet.App.7a, 59a)(J.A.212)(J.A.1130-34)(J.A.2508).

 39
cross would “be assessed in the context of all relevant
factors.” Id. at 721. One of those overriding factors, not
present here, was that “[r]espect for a coordinate
branch of Government forbids striking down an Act of
Congress except upon a clear showing of unconstitutionality.” Id.
The Commission then cites Justice Alito’s concurrence to advance its argument that the Latin cross is a
“simple marker of the dead” and of “the servicemen,”
and that the “shape of the memorial reaffirms that expressly secular meaning.” (Pet.14) (emphasis added).
Justice Alito, however, did not find that the Latin cross
was a marker for all servicemen or that it had a secular meaning. Quite the opposite, Justice Alito understood that the cross does not reflect “the religious
diversity of the American soldiers who gave their lives
in the First World War.” 559 U.S. at 726-27. He stressed
that more “than 3,500 Jewish soldiers gave their lives
for the United States,” and their graves are marked
with a “white Star of David.” Id. See (J.A.2289-90). Justice Alito simply observed that “a plain unadorned
white cross” evoked the “image of the white crosses,
row on row” in foreign cemeteries. Id. at 725.
Bladensburg Cross is not a “plain unadorned
white cross” evoking the image of overseas cemeteries,
nor was it intended to. It is a wide, 40-foot-tall, “light
brown with a reddish brown border,” concrete cross
“with decorative bands” to mirror a Catholic Shrine,
and was intended to be symbolic of “Calvary.”66 It
66

(J.A.1099)(J.A.1134)(J.A.1994)(J.A.1587)(J.A.2486-87).

 40
evokes “a message of aggrandizement and universalization of religion, and not the message of individual
memorialization and remembrance that is presented
by a field of gravestones.” Trunk, 629 F.3d at 1116 n.18.
(Pet.App.24a-25a).
In Duncan, the Tenth Circuit found that “while the
cross may be a common symbol used in markers and
memorials, there is no evidence that it is widely accepted as a secular symbol.” 616 F.3d at 1161-62. The
Ninth Circuit agreed that the “Latin cross can, as in
Flanders fields, serve as a powerful symbol of death
and memorialization, but it remains a sectarian,
Christian symbol.” Trunk, 629 F.3d at 1116. See H.R.
Res. 15, 68th Cong. at 35 (1924) (J.A.2297) (“a Latin
cross for the Christian”). Moreover, the “universal symbol emanating from those foreign wars is the poppy, not
the cross.” Id. at 1113 (emphasis added).
As Dr. Piehler testified, “[t]he vast majority of
World War I memorials do not make use of religious
iconography in their design.”67 Most are secular “statues of doughboys.” Id. at 1114.68 “Even during World
War I, attempts to use religious iconography were seen
as highly controversial.”69 Although overseas cemeteries adopted the Latin Crosses and Stars of David,

67
68
69

(J.A.190).
(J.A.188-89)(J.A.198-219)(J.A.309).
(J.A.198-206)(J.A.308-309)(J.A.926)(J.A.2280-97).

 41
national cemeteries adopted the inclusive uniform slab
marker.70
C. There is no conflict with Van Orden.
Finally, the Commission cites Justice Breyer’s concurrence in Van Orden to support its argument that
the Cross “serves as a memorial to the fallen rather
than an object of religious observance.” (Pet.14-15).
Again though, Bladensburg Cross has a long history of
“religious use and symbolism,”71 that is “inextricably
intertwined with its commemorative message.” Trunk,
629 F.3d at 1118, 1121. See also Allegheny, 492 U.S. at
599. (Opp.4-6, 28-29).
The Commission also avers that twenty years after the Cross was dedicated, “the community began to
erect other war memorials around the Peace Cross.”
(Pet.15). But unlike in Van Orden, this 40-foot-tall
Christian monolith was proposed and installed in isolation. And it remains “by far the most prominent monument” in the Town, clearly “overshadowing the other
monuments” across the road.72
Furthermore, the government added these smaller
displays, not the “community.” (Opp.6-7, 11-12, 29).
And notably, it did not install any other monument on

70

(Pet.App.35a)(J.A.188)(J.A.205)(J.A.305)(J.A.2285).
(Pet.App.7a-8a, 23a, 59a)(J.A.362-65)(J.A.1225-32)(J.A.1267-68)
(J.A.1282-1343)(J.A.1350-51)(J.A.1998)(J.A.2092)(J.A.2095-96).
72
(Pet.App.24a)(J.A.1753).
71

 42
the central traffic island occupied by the Cross.73 Thus,
a “reasonable observer would find that the [government] had assigned a place of special prominence to
the [Cross] in an effort to endorse its religious message.” Green v. Haskell County Board of Commissioners, 568 F.3d 784, 805 n.14 (10th Cir. 2009).
Ultimately, there is no tension between Van Orden
with its dual-meaning display and the Fourth Circuit’s
finding that “[w]hile 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.” (Pet.App.20a-21a).
------------------------------------------------------------------

73

(J.A.33)(J.A.37).

 43
CONCLUSION
Because the petition comes to this Court at an interlocutory stage, the case is not ripe for this Court’s
review. Nor is there any conflict between the Circuits
for the Court to resolve, or any conflict with this
Court’s precedents.
The petition for writ of certiorari should be denied.
Respectfully submitted,
MONICA L. MILLER
Counsel of Record
DAVID A. NIOSE
AMERICAN HUMANIST ASSOCIATION
1821 Jefferson Place N.W.
Washington, D.C. 20036
(202) 238-9088
mmiller@americanhumanist.org
DANIEL DOTY
THE LAW OFFICE OF
DANIEL P. DOTY, P.A.
5500 Harford Road, Suite 202
Baltimore, Maryland 21214
Counsel for Respondents