Nos. 17-1717 and 18-18

In the Supreme Court of the United States
THE AMERICAN LEGION, ET AL., PETITIONERS
v.
AMERICAN HUMANIST ASSOCIATION, ET AL.
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING
COMMISSION, PETITIONER
v.
AMERICAN HUMANIST ASSOCIATION, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS
JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
JEFFREY BOSSERT CLARK
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
FREDERICK LIU
Assistant to the Solicitor
General
ANDREW C. MERGEN
LOWELL V. STURGILL JR.
JOAN M. PEPIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTION PRESENTED

Whether a 93-year-old memorial to American servicemembers who lost their lives in World War I violates
the Establishment Clause because the memorial bears
the shape of a cross.

(I)

 TABLE OF CONTENTS

Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
A. Factual background .......................................................... 2
B. Procedural history............................................................. 5
Summary of argument ................................................................. 8
Argument:
The Memorial Cross does not violate the
Establishment Clause ............................................................. 9
A. A clear standard is needed to govern Establishment
Clause challenges to passive displays
acknowledging the role of religion in American life .... 10
B. The Memorial Cross is constitutional by reference
to historical practices and understandings ................... 13
1. The history of the Establishment Clause
distinguishes the coercion of religious belief or
adherence from the acknowledgement of
religion in public life ................................................. 15
2. The Memorial Cross does not coerce religious
belief or adherence in any relevant sense .............. 23
C. The Memorial Cross is constitutional under
more modern understandings of the Establishment
Clause ............................................................................... 25
1. The Memorial Cross conveys a secular
message in its full context ....................................... 25
2. The Memorial Cross neither endorses religion
nor excessively entangles the State with
religion ....................................................................... 30
Conclusion ................................................................................... 34
TABLE OF AUTHORITIES

Cases:
American Atheists, Inc. v. Port Auth. of N.Y. & N.J.,
760 F.3d 227 (2d Cir. 2014) ................................................ 12
(III)

 IV
Cases—Continued:

Page

American Civil Liberties Union of Ky. v. Mercer
Cnty., 432 F.3d 624 (6th Cir. 2005) ................................... 12
Arizona Christian Sch. Tuition Org. v. Winn,
563 U.S. 125 (2011)........................................................ 16, 17
Borough of Duryea v. Guarnieri, 564 U.S. 379 (2011) ...... 16
Cantwell v. Connecticut, 310 U.S. 296 (1940) ..................... 15
Card v. City of Everett, 520 F.3d 1009 (9th Cir. 2008) ....... 12
Committee for Pub. Educ. & Religious Liberty v.
Nyquist, 413 U.S. 756 (1973) ............................................. 22
County of Allegheny v. American Civil Liberties
Union, Greater Pittsburgh Chapter,
492 U.S. 573 (1989)..................................................... passim
Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1 (2004) ........................................................... 16, 20
Engel v. Vitale, 370 U.S. 421 (1962) ..................................... 21
Everson v. Board of Educ., 330 U.S. 1 (1947) ..................... 16
Felix v. City of Bloomfield, 841 F.3d 848
(10th Cir. 2016), cert. denied, 138 S. Ct. 357 (2017)......... 12
Hosanna-Tabor Evangelical Lutheran Church &
Sch. v. EEOC, 565 U.S. 171 (2012) .................................... 18
Kondrat’yev v. City of Pensacola, 903 F.3d 1169
(11th Cir. 2018), petition for cert. pending,
No. 18-351 (filed Sept. 17, 2018) .................................. 12, 29
Lee v. Weisman, 505 U.S. 577 (1992) ............................. 16, 20
Lemon v. Kurtzman, 403 U.S. 602 (1971) ............. 5, 9, 10, 33
Lynch v. Donnelly, 465 U.S. 668 (1984) ..................... passim
Marsh v. Chambers, 463 U.S. 783 (1983) ................ 14, 19, 23
McCreary Cnty. v. American Civil Liberties Union
of Ky., 545 U.S. 844 (2005) ....................................... 2, 10, 20
Mueller v. Allen, 463 U.S. 388 (1983) .................................. 33

 V
Cases—Continued:

Page

Red River Freethinkers v. City of Fargo,
764 F.3d 948 (8th Cir. 2014) ............................................... 12
Salazar v. Buono, 559 U.S. 700 (2010) ....................... passim
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290
(2000) .................................................................................... 19
School Dist. of Abington Twp. v. Schempp,
374 U.S. 203 (1963)........................................................ 14, 22
Town of Greece v. Galloway, 572 U.S. 565 (2014) ..... passim
Utah Highway Patrol v. American Atheists, Inc.,
565 U.S. 994 (2011).............................................................. 12
Valley Forge Christian Coll. v. Americans United
for Separation of Church & State, Inc.,
454 U.S. 464 (1982).............................................................. 17
Van Orden v. Perry, 545 U.S. 677 (2005) ................... passim
Wallace v. Jaffree, 472 U.S. 38 (1985)............................ 18, 19
Zelman v. Simmons-Harris, 536 U.S. 639 (2003)........ 11, 30
Constitution and statutes:
U.S. Const. Amend. I ...................................................... 13, 19
Establishment Clause ............................................ passim
Free Exercise Clause................................................ 13, 19
4 U.S.C. 4 (Supp. V 2018) ...................................................... 21
31 U.S.C. 5112(d)(1) ............................................................... 21
31 U.S.C. 5114(b) ................................................................... 21
36 U.S.C. 119 .......................................................................... 21
36 U.S.C. 302 .......................................................................... 21
42 U.S.C. 1983 .......................................................................... 5
12 Va. Stat. 86 (W. Hening ed., 1823) .................................. 18
Miscellaneous:
1 Annals of Cong. (1789):
p. 434 ................................................................................. 18

 VI
Miscellaneous—Continued:

Page

p. 729 ................................................................................. 18
p. 730 ................................................................................. 18
p. 731 ................................................................................. 18
James Madison, Memorial and Remonstrance
Against Religious Assessments (1785),
reprinted in 8 The Papers of James Madison
298-306 (Robert A Rutland et al. eds., 1973).............. 16, 17
Michael W. McConnell:
Coercion: The Lost Element of Establishment,
27 Wm. & Mary L. Rev. 933 (1986) .................... 19, 23
Establishment and Disestablishment at the
Founding, Part I: Establishment of Religion,
44 Wm. & Mary L. Rev. 2105 (2003) .................. 15, 16

 In the Supreme Court of the United States
No. 17-1717
THE AMERICAN LEGION, ET AL., PETITIONERS
v.
AMERICAN HUMANIST ASSOCIATION, ET AL.
No. 18-18
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING
COMMISSION, PETITIONER
v.
AMERICAN HUMANIST ASSOCIATION, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS
INTEREST OF THE UNITED STATES

This case concerns the constitutionality of a memorial to 49 servicemembers who fought on behalf of the
United States in World War I. The memorial bears the
shape of a Latin cross and stands on state grounds. In
2015, the National Park Service placed the memorial on
the National Register of Historic Places. Numerous
other memorial crosses stand on federal property, including two World War I memorial crosses in Arlington
(1)

 2
National Cemetery: the Argonne Cross and the Canadian Cross of Sacrifice. The United States has participated as a party or as amicus curiae in prior cases involving the Establishment Clause and passive displays
of religious symbols. See, e.g., Salazar v. Buono,
559 U.S. 700 (2010); McCreary Cnty. v. American Civil
Liberties Union of Ky., 545 U.S. 844 (2005); Van Orden
v. Perry, 545 U.S. 677 (2005).
STATEMENT
A. Factual Background

1. This case concerns the “Memorial Cross”—a memorial to 49 men from Prince George’s County, Maryland, who died in service to this country in World War I.
17-1717 Pet. App. (Pet. App.) 51a-52a; see id. at 30a-31a
(photographs). The memorial, which is made of concrete, bears the shape of a Latin cross and stands approximately 40 feet tall on a traffic median at the intersection of Maryland Route 450 and U.S. Route 1 in
Bladensburg, Maryland. Id. at 51a. The symbol of the
American Legion—a veterans service organization—
appears on both sides of the cross where the bars meet.
Id. at 52a; see D. Ct. Doc. 15, at 2 (May 1, 2014); J.A.
931. Four words are inscribed near the bottom of the
cross, one on each side: “valor,” “endurance,” “courage,” and “devotion.” Pet. App. 52a.
The Memorial Cross sits on a rectangular pedestal.
Pet. App. 52a. The pedestal features a nine-foot-wide
plaque, id. at 105a, stating: “This Memorial Cross Dedicated to the heroes of Prince George’s County Maryland who lost their lives in the Great War for the liberty
of the world.” Id. at 52a; see id. at 32a (photograph).
The plaque then lists the names of the 49 local men who
died, id. at 52a, and concludes with a quotation from
President Wilson, taken from his speech to Congress in

 3
1917 asking for a declaration of war: “The right is more
precious than peace. We shall fight for the things we
have always carried nearest our hearts. To such a task
we dedicate our lives.” J.A. 932. An American Legion
symbol appears in each corner of the plaque. J.A. 931.
Next to the Memorial Cross stands a flagpole flying an
American flag. Pet. App. 52a.
2. The idea for the Memorial Cross originated with
a group of private citizens, including ten mothers of the
fallen, organized as the Prince George’s County Memorial Committee (Memorial Committee). Pet. App. 52a;
J.A. 989. The Memorial Committee began raising funds
for the construction of the memorial in late 1918. Pet.
App. 52a. In 1919, the Memorial Committee held a
groundbreaking ceremony, attended by the Secretary
of the Navy and families of veterans, where the memorial now stands. Id. at 53a-54a. “At the time of the
groundbreaking, the land was owned by the Town of
Bladensburg.” Ibid. The Memorial Committee chose
that site because of its “strategic position” at one end of
the National Defense Highway (now Maryland Route
450), itself a memorial to those who died in the war. Id.
at 52a-53a; see J.A. 928, 1082, 1246.
In 1922, the American Legion assumed responsibility for completing the Memorial Cross. Pet. App. 54a.
That same year, the Town passed a resolution assigning
the “parcel of ground upon which the cross now stands”
to a local post of the American Legion. Id. at 55a (citation omitted). The American Legion unveiled the completed memorial at a dedication ceremony in 1925. Ibid.
In the decades that followed, traffic around the Memorial Cross increased, and safety concerns arose
about private ownership of the median. Pet. App. 56a.

 4
In 1961, the Maryland-National Capital Park and Planning Commission (Commission), a state entity, acquired
both the memorial and the median. Id. at 5a, 57a. The
Commission thus assumed responsibility for maintaining the memorial, and it has owned the memorial and
the median ever since. Ibid.; see id. at 59a-60a.
3. Over the years, the American Legion, the Town,
and the Commission have held numerous “patriotic”
events by the Memorial Cross, Pet. App. 59a, “the vast
majority in commemoration of Memorial Day or Veterans Day,” id. at 58a. “The events generally follow the
same format and include a presentation of colors, the
national anthem, an invocation, a keynote speaker (typically a veteran[] [or] military, local government, or
American Legion official), songs or readings, the laying
of a wreath or flowers, a benediction, and a reception.”
Id. at 59a.
Today, the Memorial Cross is part of an area known
as Veterans Memorial Park. Pet. App. 57a; see id. at
109a (map). The Park is home to six other memorials,
erected over the years, commemorating lives lost in the
War of 1812, World War II (and, specifically, at Pearl
Harbor), the Korean and Vietnam Wars, and the September 11 attacks. Id. at 57a-58a, 105a-107a; 17-1717
Br. in Opp. 11 & n.48. A sign installed by the National
Park Service marks the “Bladensburg Monuments” on
the “Star-Spangled Banner National Historic Trail”
and explains that “[t]his crossroads has become a place
for communities to commemorate their residents in service and in death.” J.A. 1517. The National Park Service
added the Memorial Cross to its National Register of
Historic Places in 2015. J.A. 1601; see Pet. App. 60a n.6.

 5
B. Procedural History

1. For nearly 90 years, the Memorial Cross stood
unchallenged. In 2014, respondents—the American
Humanist Association and three individuals alleging
“unwelcome contact” with the memorial, J.A. 29-30—
sued the Commission under 42 U.S.C. 1983, claiming
that the memorial violates the Establishment Clause,
J.A. 36. The American Legion and its state and local
chapters intervened to defend the memorial. Pet. App.
8a, 60a.
The district court granted summary judgment to the
Commission and the American Legion. Pet. App. 50a81a. The court concluded that the Memorial Cross is
constitutional under either the three-part test of Lemon
v. Kurtzman, 403 U.S. 602 (1971), or the “legal judgment” test of Justice Breyer’s concurrence in Van Orden v. Perry, 545 U.S. 677 (2005). Pet. App. 64a-66a.
Applying Lemon’s three-part test, the court determined, first, that the Commission’s display of the memorial served the “legitimate secular purpose” of
“honor[ing] fallen soldiers,” id. at 69a; second, that “a
reasonable observer would not view the [memorial] as
having the effect of impermissibly endorsing religion,”
id. at 75a; and third, that the Commission’s maintenance of the memorial does not create excessive entanglement between government and religion, id. at 75a77a. The court then determined that, “for many of the
same reasons,” the memorial “does not violate the Establishment Clause under Van Orden’s legal judgment
test.” Id. at 77a-78a.
2. A divided panel of the court of appeals reversed
and remanded for further proceedings. Pet. App. 1a-29a.
a. The panel majority first determined that respondents have standing to bring an Establishment

 6
Clause claim, based on the individual respondents’ allegations of “unwelcome direct contact with the Cross,”
Pet. App. 10a, and the American Humanist Association’s allegations that its members have experienced
the same, id. at 11a. Turning to the merits, the panel
majority determined that “[t]he display and maintenance of the Cross violates the Establishment Clause.”
Id. at 29a. Based on its view that Van Orden “did not
overrule Lemon,” id. at 14a, the majority applied “the
three-prong test in Lemon,” while giving what it characterized as “due consideration” to “the factors outlined
in Van Orden,” id. at 15a.
The panel majority found Lemon’s first prong satisfied because the Commission’s display and maintenance
of the Memorial Cross serve the “legitimate secular
purposes” of maintaining “safety near a busy highway
intersection” and preserving a “memorial to honor
World War I soldiers.” Pet. App. 16a. The majority determined, however, that the “Commission’s display of
the Cross fails the second and third prongs of Lemon.”
Id. at 29a. With respect to the second prong, the majority reasoned that “the Latin cross is ‘exclusively a
Christian symbol,’ ” id. at 17a (citation omitted), and
that while “the Cross contains a few secular elements,”
“the sectarian elements easily overwhelm the secular
ones,” id. at 21a-22a. The majority therefore concluded
that “a reasonable observer would fairly understand the
Cross to have the primary effect of endorsing religion.”
Id. at 25a. With respect to Lemon’s third prong, the
majority found “excessive religious entanglement” because the “Commission has spent at least $117,000 to
maintain the Cross and has set aside an additional
$100,000 for restoration”; and because “the Commission
is displaying the hallmark symbol of Christianity in a

 7
manner that dominates its surroundings and * * * excludes all other religious tenets.” Id. at 27a-28a.
Having found an Establishment Clause violation, the
panel majority remanded the case for the parties to explore a remedy, such as “removing the arms or razing
the Cross entirely.” Pet App. 29a n.19.
b. Chief Judge Gregory dissented from the majority’s Establishment Clause holding. Pet. App. 34a-49a.
Emphasizing the memorial’s “overwhelmingly secular
history and context,” id. at 46a, he concluded that a
“reasonable observer” would “perceive the Memorial”
not “as an endorsement of Christianity,” but rather as
“a war memorial built to celebrate the forty-nine Prince
George’s County residents who gave their lives in battle,” id. at 46a-47a. Chief Judge Gregory also criticized
the majority for “confus[ing] maintenance of a highway
median and monument in a state park with excessive religious entanglement.” Id. at 40a.
3. The court of appeals denied rehearing en banc by
an 8-6 vote. Pet. App. 82a-84a. Judge Wynn explained
that he voted to deny rehearing because, in his view,
“[n]othing in the First Amendment empowers the judiciary to conclude that the freestanding Latin Cross has
been divested of [its] predominately sectarian meaning.” Id. at 85a-86a. Chief Judge Gregory, joined by
Judges Wilkinson and Agee, dissented from the denial
for the reasons expressed in his dissent from the panel
decision. Id. at 94a. Judge Wilkinson separately dissented, joined by Chief Judge Gregory and Judge Agee,
stating that he “would let the cross remain and let those
honored rest in peace.” Id. at 96a. And Judge Niemeyer also dissented, expressing concern that the panel
decision “puts at risk hundreds of monuments with similar symbols standing on public grounds across the

 8
country, such as those in nearby Arlington National
Cemetery, where crosses of comparable size stand in
commemoration of fallen soldiers.” Id. at 97a.
SUMMARY OF ARGUMENT

A. This Court’s previous decisions do not provide a
clear standard for Establishment Clause challenges to
passive displays such as the Memorial Cross, which has
led lower courts to apply different tests in cases like this
one. And because those tests involve fact-intensive inquiries that are heavily dependent on context, lower
courts have not always reached consistent outcomes
across cases. That indeterminacy encourages challenges to longstanding displays like the Memorial
Cross, which in turn fosters the very religion-based divisiveness that the Establishment Clause seeks to
avoid. This case presents an opportunity for the Court
to adopt a standard for Establishment Clause challenges to passive displays that will provide clarity to
lower courts, promote consistency across cases, and reduce factious litigation.
B. In Town of Greece v. Galloway, 572 U.S. 565
(2014), this Court reaffirmed in considering the constitutionality of legislative prayer that the Establishment
Clause should be interpreted “by reference to historical
practices and understandings.” Id. at 576 (citation
omitted). Given the similarities between legislative
prayer and passive displays like the Memorial Cross—
which both represent forms of symbolic expression by
the government—the Court should adopt the same historical approach here. History shows that the Framers
understood the Establishment Clause as prohibiting
the coercion of religious belief or adherence, but not the
acknowledgement of religion in public life. Passive displays generally fall on the permissible side of that line,

 9
because they typically do not compel religious belief; coerce support for, or participation in, any particular religion or its exercise; or represent an effort to proselytize
or denigrate any particular faith. That is certainly true
of the Memorial Cross. Respondents take offense at
seeing the cross, but that offense does not amount to
coercion—and thus to an establishment of religion.
C. Even if this Court looks to more modern understandings of the Establishment Clause, the Memorial
Cross is constitutional. It is indistinguishable in every
material respect from the Ten Commandments display
this Court upheld in Van Orden v. Perry, 545 U.S. 677
(2005). As in that case, the context, history, and physical setting of the display underscore its secular message: commemoration and respect for the fallen. The
fact that the memorial stood unchallenged for decades
reinforces that it has been understood by the community as a secular war memorial. The Memorial Cross
also satisfies the three-part test outlined in Lemon v.
Kurtzman, 403 U.S. 602 (1971). A reasonable observer
with knowledge of the relevant facts and circumstances
would not perceive the memorial to be a governmental
endorsement of Christian beliefs. And the Commission’s expenditure of funds for maintenance of the memorial does not excessively entangle the Commission
with religion.
ARGUMENT
THE MEMORIAL CROSS DOES NOT VIOLATE THE
ESTABLISHMENT CLAUSE

For almost a century, a memorial cross has stood in
commemoration of the 49 residents of Prince George’s
County, Maryland, who died in service to this Nation in
World War I. In holding that the cross may not remain,

 10
the decision below unavoidably fosters the very divisiveness that the Establishment Clause seeks to avoid. Facing similar concerns in the context of legislative prayer,
this Court recently reaffirmed that the Establishment
Clause should be interpreted “by reference to historical
practices and understandings.” Town of Greece v. Galloway, 572 U.S. 565, 576 (2014) (citation omitted). To
bring clarity and consistency to this area, and to reduce
these types of rancorous conflicts among litigants, the
Court should take the same historical approach to passive displays of religiously associated symbols that
acknowledge the role of religion in the formation and
history of the Nation and the lives of its people. On that
approach, the Memorial Cross here is constitutional because it does not coerce religious belief or adherence in
any meaningful sense. Under any standard, however,
the Memorial Cross passes muster because, viewed in
proper context, it conveys a secular message. Whatever
the relevant test, the Constitution permits the State to
join its citizens in honoring fallen servicemembers by
displaying the Memorial Cross.
A. A Clear Standard Is Needed To Govern Establishment
Clause Challenges To Passive Displays Acknowledging
The Role Of Religion In American Life

This Court has applied different tests in considering
the constitutionality of passive displays challenged under the Establishment Clause. In some cases, the Court
has applied the three-pronged test outlined in Lemon v.
Kurtzman, 403 U.S. 602 (1971). See, e.g., McCreary
Cnty. v. American Civil Liberties Union of Ky., 545
U.S. 844 (2005); County of Allegheny v. American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U.S.
573 (1989). “Under the Lemon analysis, a statute or

 11
practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a
secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not
foster an excessive entanglement with religion.”
County of Allegheny, 492 U.S. at 592. In assessing
Lemon’s second prong, the Court has asked whether a
“reasonable observer” would view the challenged action
as an “endorsement” of religion. Zelman v. SimmonsHarris, 536 U.S. 639, 655 (2002).
In Van Orden v. Perry, 545 U.S. 677 (2005), however,
a majority of the Court expressly declined to apply the
Lemon framework, including the endorsement test, in
reviewing the constitutionality of a Ten Commandments display on public grounds. See id. at 686 (plurality opinion) (“[W]e think [Lemon] not useful in dealing
with the sort of passive monument that Texas has
erected on its Capitol grounds.”); id. at 699-700 (Breyer,
J., concurring in judgment). Instead, the plurality focused on “the nature of the monument” and “our Nation’s history,” id. at 686 (plurality opinion), while Justice Breyer—in a concurrence that lower courts have
treated as the controlling opinion in the case, see Pet.
App. 14a—considered a broad range of factors, each
bearing on “the message that the [display] conveys,”
Van Orden, 545 U.S. at 701 (Breyer, J., concurring in
judgment).
Rather than apply either of those frameworks in this
case, the court of appeals adopted a hybrid approach,
combining “the three-prong test in Lemon” with “due
consideration” for “the factors outlined in Van Orden.”
Pet. App. 15a. Other courts, by contrast, have adhered
exclusively to the Lemon test in deciding challenges to

 12
passive displays. See, e.g., Kondrat’yev v. City of Pensacola, 903 F.3d 1169, 1173-1174 (11th Cir. 2018) (per
curiam), petition for cert. pending, No. 18-351 (filed
Sept. 17, 2018); Felix v. City of Bloomfield, 841 F.3d
848, 856 (10th Cir. 2016), cert. denied, 138 S. Ct. 357
(2017); American Atheists, Inc. v. Port Auth. of N.Y. &
N.J., 760 F.3d 227, 238 (2d Cir. 2014); American Civil
Liberties Union of Ky. v. Mercer Cnty., 432 F.3d 624,
636 (6th Cir. 2005). And still others have understood
Van Orden as creating an exception to Lemon in some
cases. See, e.g., Red River Freethinkers v. City of
Fargo, 764 F.3d 948, 949 (8th Cir. 2014); Card v. City of
Everett, 520 F.3d 1009, 1018 (9th Cir. 2008).
The resulting uncertainty in the lower courts has
been compounded by the indeterminacy of the Lemon
and Van Orden tests themselves. Both tests require a
fact-intensive inquiry into a variety of circumstances,
including the history of a particular religious symbol,
the way the symbol appears as part of the display, the
display’s proximity to other displays, and the context
surrounding the display’s placement on public grounds.
See Van Orden, 545 U.S. at 700-704 (Breyer, J., concurring in judgment); County of Allegheny, 492 U.S. at 674675 (Kennedy, J., concurring in judgment in part and
dissenting in part). Because each test’s application is so
context-dependent, adjudication must proceed display
by display; disputes often cannot be resolved at an early
stage; and even seemingly minor differences between
displays can produce divergent outcomes. See Utah
Highway Patrol v. American Atheists, Inc., 565 U.S.
994, 1001-1004 (2011) (Thomas, J., dissenting from the
denial of certiorari).
Such indeterminacy encourages disputes over the
constitutionality of longstanding displays like the one at

 13
issue here. See Van Orden, 545 U.S. at 698, 704
(Breyer, J., concurring in judgment). And those disputes, in turn, undermine one of the “basic purposes” of
the Establishment Clause: to avoid “divisiveness based
upon religion.” Id. at 698. This case is an excellent example: The removal or destruction of a 93-year-old war
memorial would be viewed by many as the action of a
government “that is not neutral but hostile on matters
of religion and is bent on eliminating from all public
places and symbols any trace of our country’s religious
heritage.” Salazar v. Buono, 559 U.S. 700, 726 (2010)
(Alito, J., concurring in part and concurring in judgment). Cases like these cannot help but divide those
with sincerely held beliefs on both sides. This case presents an opportunity for the Court to adopt a standard
for Establishment Clause challenges to passive displays
that will reduce factious litigation, provide clarity to
lower courts, and promote consistency across cases.
B. The Memorial Cross Is Constitutional By Reference To
Historical Practices And Understandings

The First Amendment provides in pertinent part
that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof.” U.S. Const. Amend. I. In construing the Establishment Clause, this Court has long been guided by
“what history reveals was the contemporaneous understanding of its guarantees.” Lynch v. Donnelly, 465
U.S. 668, 673 (1984); see Town of Greece, 572 U.S. at 602
(Alito, J., concurring) (“This Court has always purported to base its Establishment Clause decisions on
the original meaning of that provision.”). The Court has
thus looked to “historical evidence” in discerning both
“what” the Establishment Clause “mean[s]” and “how”

 14
it “applie[s]” to a particular practice. Marsh v. Chambers, 463 U.S. 783, 790 (1983); see School Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 294 (1963) (Brennan,
J., concurring) (“[T]he line we must draw between the
permissible and the impermissible is one which accords
with history and faithfully reflects the understanding of
the Founding Fathers.”).
The Court most recently applied that historical approach in Town of Greece. In addressing the constitutionality of a town’s practice of “opening its monthly
board meetings with a prayer,” 572 U.S. at 570, a majority of this Court considered that question “against
the backdrop of historical practice.” Id. at 587 (plurality
opinion); see id. at 608-610 (Thomas, J., concurring in
part and concurring in judgment). In so doing, the
Court reaffirmed that “the Establishment Clause must
be interpreted ‘by reference to historical practices and
understandings.’ ” Id. at 576 (opinion of the Court) (citation omitted). Applying that test in light of “the unambiguous and unbroken history” of legislative prayer
throughout the Nation, ibid. (citation omitted), the
Court upheld the town’s practice because it “comport[ed] with our tradition and d[id] not coerce participation by nonadherents,” id. at 591-592.
Like legislative prayer, displays such as the Memorial Cross represent a form of “symbolic expression” by
the government. Town of Greece, 572 U.S. at 575. In
both cases, the issue is whether the government’s
acknowledgement of religion is “benign,” id. at 576, “rather than a first, treacherous step towards establishment of a state church,” id. at 575. Given those similarities, the Court should adopt the same approach for passive displays as for legislative prayer, and again look to
our Nation’s history as a guide. That history shows that

 15
the founding generation understood the Establishment
Clause as prohibiting governmental coercion of religious belief or adherence, but as permitting governmental acknowledgement of religion in public life. The
Memorial Cross stands on the permissible side of that
constitutional line.
1. The history of the Establishment Clause distinguishes
the coercion of religious belief or adherence from the
acknowledgement of religion in public life

a. As originally understood, the Establishment
Clause protects religious liberty by “forestall[ing] compulsion by law of the acceptance of any creed or the
practice of any form of worship.” Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); see Town of Greece, 572
U.S. at 586 (plurality opinion) (“It is an elemental First
Amendment principle that government may not coerce
its citizens ‘to support or participate in any religion or
its exercise.’ ”) (citation omitted). That is the threat at
which the Establishment Clause is aimed, because it is
the threat with which the Framers were well familiar.
The Church of England had been England’s established
church since the Act of Supremacy in 1534, and “[e]stablished religion came to these shores with the earliest
colonists.” Michael W. McConnell, Establishment and
Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 21122115 (2003) (Establishment).
The hallmark of those early state establishments of
religion was compelling or coercing people to profess
belief in, participate in, or otherwise support a particular religion. “In a typical case, attendance at the established church was mandatory, and taxes were levied to
generate church revenue.” Town of Greece, 572 U.S. at
608 (Thomas, J., concurring in part and concurring in

 16
judgment); see Establishment 2144-2146, 2152-2159.
“[O]nly clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an
array of civil disabilities.” Lee v. Weisman, 505 U.S.
577, 641 (1992) (Scalia, J., dissenting). An establishment of religion at the time of the Founding was thus
marked by some element of compelled religious belief
or adherence, whether by requiring religious observance or support, sanctioning nonadherence, or controlling the inner workings of the church. Establishment 2131. And the movement toward disestablishment
was, in turn, marked by greater guarantees of freedom
from such coercion. See ibid.
Virginia’s experience with disestablishment illustrates the point. “In 1785, the General Assembly of the
Commonwealth of Virginia considered a ‘tax levy to
support teachers of the Christian religion.’ ” Arizona
Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 140
(2011) (citation omitted). The proposed assessment was
an example of “coercive taxation to support an established religion.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 54 (2004) (Thomas, J., concurring in
judgment). And it was in response to that proposal that
James Madison penned his famous Memorial and Remonstrance Against Religious Assessments (1785), reprinted in 8 The Papers of James Madison 298-306
(Robert A. Rutland et al. eds., 1973) (Memorial and Remonstrance), “at once the most concise and the most accurate statement of the views of the First Amendment’s
author concerning what is ‘an establishment of religion,’ ” Everson v. Board of Educ., 330 U.S. 1, 37 (1947)
(Rutledge, J., dissenting); see Borough of Duryea v.

 17
Guarnieri, 564 U.S. 379, 396 (2011) (describing the Memorial and Remonstrance as “an important document in
the history of the Establishment Clause”).
“In the Memorial and Remonstrance, Madison objected to the proposed assessment on the ground that it
would coerce a form of religious devotion in violation of
conscience.” Arizona Christian, 563 U.S. at 141. The
proposed assessment, Madison declared, would be “a
dangerous abuse of power” if “armed with the sanctions
of a law.” Memorial and Remonstrance 299 (pmbl.). It
would violate, in Madison’s view, the “fundamental”
truth that religion “ ‘can be directed only by reason and
conviction, not by force or violence.’ ” Ibid. (¶ 1) (citation omitted). And if the proposal were enacted, Madison warned, there would be no principled basis to object
to further coercion: “the same authority which can
force a citizen to contribute three pence only of his property for the support of any one establishment, may force
him to conform to any other establishment in all cases
whatsoever.” Id. at 300 (¶ 3).
The proposed assessment “ultimately died in committee,” Arizona Christian, 563 U.S. at 141, and “in its
place Madison succeeded in securing the enactment of
‘A Bill for Establishing Religious Freedom,’ first introduced in the Virginia General Assembly seven years
earlier by Thomas Jefferson,” Valley Forge Christian
Coll. v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 502 (1982) (Brennan, J., dissenting). In condemning religious establishments, Jefferson’s bill shared Madison’s focus on coercion. As enacted, the bill guaranteed “[t]hat no man shall be compelled to frequent or support any religious worship,
place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods,

 18
nor shall otherwise suffer on account of his religious
opinions or belief.” 12 Va. Stat. 86 (W. Hening ed.,
1823). Many other States prohibited the establishment
of religion using similar language. See 17-1717 Pet. Br.
33 n.9.
Madison went on to become “the leading architect of
the religion clauses of the First Amendment.” HosannaTabor Evangelical Lutheran Church & Sch. v. EEOC,
565 U.S. 171, 184 (2012) (citation omitted). In 1789, he
proposed in the House of Representatives the following
language for those Clauses: “The civil rights of none
shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor
shall the full and equal rights of conscience be in any
manner, or on any pretext, infringed.” 1 Annals of
Cong. 434 (1789). A committee consisting of Madison
and others subsequently revised the language to read:
“no religion shall be established by law, nor shall the
equal rights of conscience be infringed.” Id. at 729; see
Wallace v. Jaffree, 472 U.S. 38, 95 (1985) (Rehnquist, J.,
dissenting).
When the House debated the revised language, Madison explained that “he apprehended the meaning of the
words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor
compel men to worship God in any manner contrary to
their conscience.” 1 Annals of Cong. 730. Madison thus
made clear that the text of the proposed amendment
covered “enforc[ing]” religious observance “by law” or
“compel[ling]” worship. He also addressed the concerns underlying the amendment: that “one sect might
obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to
conform.” Id. at 731. Although Congress ultimately

 19
changed the text to “Congress shall make no law respecting an establishment of religion,” there is no indication that the change fundamentally altered the meaning of the provision.
In sum, as both the experience in the States and
Madison’s remarks in Congress show, “compulsion” was
regarded as “the essence of an establishment” when the
First Amendment was ratified. Michael W. McConnell,
Coercion: The Lost Element of Establishment, 27 Wm.
& Mary L. Rev. 933, 937 (1986) (Lost Element); see U.S.
Br. at 7, Lee, supra (No. 90-1014) (stating, with respect
to ceremonial acknowledgements of religion, that “[t]he
proper approach recognizes that in this setting coercion
is the touchstone of an Establishment Clause violation”). To the founding generation, the Establishment
and Free Exercise Clauses stood in harmony, serving
the fundamental purpose of “secur[ing] religious liberty,” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290,
313 (2000) (citation omitted), by both protecting against
coercive governmental activity and ensuring the freedom to worship according to the dictates of conscience,
see Wallace, 472 U.S. at 50.
b. History makes clear not only that the Establishment Clause forbids coercion, but what types of actions
are (or are not) coercive. See Marsh, 463 U.S. at 790
(explaining that “historical evidence sheds light not
only on what the draftsmen intended the Establishment
Clause to mean, but also on how they thought that
Clause applied” to contemporaneous practices). The
founding generation generally saw no Establishment
Clause problem with “official acknowledgement * * *
of the role of religion in American life.” Lynch, 465 U.S.
at 674. As this Court has observed, there is “an unbroken history” of such recognition of religion “by all three

 20
branches of government” dating back to the early Republic. Ibid.; see Elk Grove, 542 U.S. at 26 (Rehnquist,
C.J., concurring in judgment) (“Examples of patriotic
invocations of God and official acknowledgements of religion’s role in our Nation’s history abound.”).
For example, Presidents beginning with Washington
have invoked God in their inaugural addresses, Lee,
505 U.S. at 633-634 (Scalia, J., dissenting), and “issued
Thanksgiving Proclamations establishing a national day
of celebration and prayer,” County of Allegheny,
492 U.S. at 671 (Kennedy, J., concurring in judgment in
part and dissenting in part). Washington “added to the
form of Presidential oath prescribed by Art. II, § 1,
cl. 8, of the Constitution, the concluding words ‘so help
me God.’ ” McCreary Cnty., 545 U.S. at 886 (Scalia, J.,
dissenting). The very First Congress “enacted legislation providing for paid Chaplains” to “offer daily prayers” in the House and the Senate. Lynch, 465 U.S.
at 674. The same Congress also reenacted the Northwest Ordinance, which recognized “[r]eligion, morality,
and knowledge” as “necessary to good government.”
McCreary Cnty., 545 U.S. at 887 (Scalia, J., dissenting)
(citation omitted). “And this Court’s own sessions have
opened with the invocation ‘God save the United States
and this Honorable Court’ since the days of Chief Justice
Marshall.” Lee, 505 U.S. at 635 (Scalia, J., dissenting).
That those practices were embraced by the founding
generation means that they were not then viewed—and
should not now be regarded—as prohibited by the Establishment Clause. See Town of Greece, 572 U.S. at
577 (“Any test the Court adopts must acknowledge a
practice that was accepted by the Framers and has
withstood the critical scrutiny of time and political
change.”). “But the relevance of history is not confined

 21
to the inquiry into whether the challenged practice itself is a part of our accepted traditions dating back to
the Founding.” County of Allegheny, 492 U.S. at 669
(Kennedy, J., concurring in judgment in part and dissenting in part). Even where a challenged practice was
“not commonplace in 1791,” the question remains
whether the practice has any “greater potential for an
establishment of religion” than “legitimate practices
two centuries old.” Id. at 670; see Lynch, 465 U.S. at
682 (evaluating constitutionality of a city’s display of a
crèche by reference to practices “previously held not violative of the Establishment Clause”).
For certain practices, the answer will plainly be no.
Congress’s designation of a National Day of Prayer,
36 U.S.C. 119, inclusion of the language “one Nation under God” in the Pledge of Allegiance, 4 U.S.C. 4 (Supp.
V 2018), and placement of the national motto “In God
we trust” on coins and currency, 36 U.S.C. 302; see
31 U.S.C. 5112(d)(1), 5114(b), have no greater potential
for an establishment of religion than the other governmental acknowledgements of religion that were accepted at the time of the Founding. See Lynch, 465 U.S.
at 676; County of Allegheny, 492 U.S. at 672-673 (Kennedy, J., concurring in judgment in part and dissenting
in part); see also Van Orden, 545 U.S. at 699 (Breyer,
J., concurring in judgment). The same will generally be
true of passive displays acknowledging the role of religion in the Nation’s history and the lives of its people.
In no meaningful sense are observers being made to espouse religious belief, to engage in religious observance, or to provide financial support targeted to any
particular religion.
c. In Engel v. Vitale, 370 U.S. 421 (1962), the Court
held that the Establishment Clause did not permit a

 22
school district’s practice of reciting an official prayer in
its public schools. Id. at 424. In so doing, the Court
stated that the Establishment Clause “does not depend
upon any showing of direct governmental compulsion
and is violated by the enactment of laws which establish
an official religion whether those laws operate directly
to coerce nonobserving individuals or not.” Id. at 430.
The Court’s statement, however, was in response to the
school district’s argument that the prayer was not coercive because students could “remain silent or be excused from the room.” Ibid. The Court’s point was that
a directive to young children to pray may not cease to
be coercive in that circumstance: there may still be “indirect coercive pressure * * * to conform to the prevailing officially approved religion.” Id. at 431. Engel
thus did not discard coercion as the touchstone for an
Establishment Clause violation, though it did recognize
that coercion may be direct or indirect.
In Schempp, the Court summarized Engel as holding
that a violation of the Establishment Clause need not be
“predicated on coercion.” 374 U.S. at 223. And in Committee for Public Education & Religious Liberty v.
Nyquist, 413 U.S. 756 (1973), the Court relied on
Schempp in turn for its statement that “proof of coercion” is “not a necessary element of any claim under the
Establishment Clause.” Id. at 786. Those isolated
statements, however, ultimately trace to Engel and
should be understood in the same way: “direct coercion
need not always be shown to establish an Establishment
Clause violation.” County of Allegheny, 492 U.S. at 661
n.1 (Kennedy, J., concurring in judgment in part and
dissenting in part). Otherwise, the Court’s statements
would have been inconsistent with its earlier cases

 23
treating compulsion as the critical element of an Establishment Clause violation. See Lost Element 934-935.
Because coercion may be indirect, a display will violate the Establishment Clause when it involves “governmental exhortation to religiosity that amounts in fact to
proselytizing.” County of Allegheny, 492 U.S. at 659660 (Kennedy, J., concurring in judgment in part and
dissenting in part); see Van Orden, 545 U.S. at 692
(Scalia, J., concurring) (stating that the Establishment
Clause permits veneration of the Ten Commandments
“in a nonproselytizing manner”). In Town of Greece, the
Court explained that legislative prayer may not be “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” 572 U.S. at 583 (quoting
Marsh, 463 U.S. at 794-795); see id. at 585 (noting that
government could not engage in “a pattern of prayers”
that “denigrate” or “proselytize”). The same is true of
passive displays. “Symbolic recognition or accommodation of religious faith may violate the [Establishment]
Clause in an extreme case,” County of Allegheny,
492 U.S. at 661 (Kennedy, J., concurring in judgment in
part and dissenting in part), where a display (or series
of displays) represents an effort “to proselytize or force
truant constituents into the pews,” Town of Greece, 572
U.S. at 587 (plurality opinion).
2. The Memorial Cross does not coerce religious belief
or adherence in any relevant sense

The Memorial Cross does not raise any of the concerns against which the Establishment Clause protects.
By displaying the memorial, the Commission has not
“compelled” anyone “to observe or participate in any religious ceremony or activity.” County of Allegheny, 492
U.S. at 664 (Kennedy, J., concurring in judgment in part
and dissenting in part). “Passersby who disagree with

 24
the message conveyed by the[] display[] are free to ignore [it], or even to turn their backs, just as they are
free to do when they disagree with any other form of
government speech.” Ibid. To be sure, respondents
take offense at seeing the Memorial Cross while driving
past it, Pet. App. 7a, but “[o]ffense * * * does not
equate to coercion. Adults often encounter speech they
find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a
sense of affront from the expression of contrary religious views.” Town of Greece, 572 U.S. at 589 (plurality
opinion); see id. at 610 (Thomas, J., concurring in part
and concurring in judgment) (same). Nor do the memorial’s location and context indicate that it is an effort to
proselytize, denigrate, or obtain adherents to a particular faith.
In the end, it cannot be said that the Memorial Cross
bears any “greater potential for an establishment of religion” than “legitimate practices two centuries old,”
such as Thanksgiving Proclamations or legislative
prayer. County of Allegheny, 492 U.S. at 670 (Kennedy,
J., concurring in judgment in part and dissenting in
part); see id. at 665. Nor can it be said that the Memorial Cross presents any greater potential for an establishment than the passive displays this Court has previously upheld—namely, the crèche in Lynch, 465 U.S. at
687; the menorah in County of Allegheny, 492 U.S. at
621 (opinion of Blackmun, J.); or the Ten Commandments in Van Orden, 545 U.S. at 692 (plurality opinion).
Just as the Constitution permits a government to
“shar[e] with its citizens the joy of the holiday season”
by displaying a crèche or menorah, County of Allegheny, 492 U.S. at 663 (Kennedy, J., concurring in judg-

 25
ment in part and dissenting in part), so too the Constitution permits a government to join its citizens in honoring the war dead by displaying a cross.
C. The Memorial Cross Is Constitutional Under More
Modern Understandings Of The Establishment Clause

Even if this Court looks to more modern understandings of the Establishment Clause, the Memorial Cross
is constitutional. It is indistinguishable in every material respect from the Ten Commandments display this
Court upheld in Van Orden. And the Memorial Cross
neither endorses religion nor excessively entangles the
Commission with religion.
1. The Memorial Cross conveys a secular message in its
full context

In Van Orden, the Court upheld the constitutionality
of a Ten Commandments display on state grounds. See
545 U.S. at 692 (plurality opinion); id. at 700-705
(Breyer, J., concurring in judgment). In his concurrence, Justice Breyer considered a number of factors,
each relevant to “the message that the [display] conveys.” Id. at 701. Those same factors demonstrate even
more conclusively here that the Memorial Cross is constitutional.
a. First, “the context of [a] display” may make clear
that a symbol or text associated with religion also conveys a “secular” or “historical” message. Van Orden,
545 U.S. at 701 (Breyer, J., concurring in judgment).
That can be true of a Latin cross, which is “certainly a
Christian symbol.” Buono, 559 U.S. at 715 (plurality
opinion). But it is also “a symbol often used to honor
and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place
in history for this Nation and its people.” Id. at 721.

 26
The Latin cross is associated with World War I in
particular: it “evoke[s] the unforgettable image of the
white crosses, row on row, that marked the final resting
places of so many American soldiers who fell in that conflict.” Id. at 725 (Alito, J., concurring in part and concurring in judgment); see id. at 721 (plurality opinion)
(“Here, one Latin cross in the desert * * * evokes thousands of small crosses in foreign fields marking the
graves of Americans who fell in battles.”).
That is precisely the context in which a Latin cross appears here, as part of a memorial to fallen World War I
servicemembers. The cross itself contains the emblem of
the American Legion—a veterans service organization—
on both sides where the bars meet. Pet. App. 52a; J.A.
931. Words inscribed into the cross pay tribute to the
“valor,” “endurance,” “courage,” and “devotion” of
those it honors. Pet. App. 52a. The plaque at the base
of the cross makes its purpose explicit: “This Memorial
Cross Dedicated to the heroes of Prince George’s
County Maryland who lost their lives in the Great War
for the liberty of the world.” Ibid. The plaque then lists
the names of the 49 local servicemembers who died.
Ibid. Far more expressly than in Van Orden, the Memorial Cross “communicates not simply a religious message, but a secular message as well,” 545 U.S. at 701
(Breyer, J., concurring in judgment)—namely, a message of commemoration and respect for the fallen.
b. Second, the “circumstances surrounding [a] display’s placement on [public] grounds” may confirm its
secular message. Van Orden, 545 U.S. at 701 (Breyer,
J., concurring in judgment). In Van Orden, a “private
civic (and primarily secular) organization” had “donated” the monument “to highlight the Commandments’ role in shaping civic morality.” Ibid. Similarly

 27
here, two private civic organizations—the Memorial
Committee and the American Legion—financed the
construction of the memorial to honor the local servicemembers who had died in the war. Pet. App. 52a-56a.
And just as the monument in Van Orden “prominently
acknowledge[d]” the private organization’s role, both
faces of the Memorial Cross prominently display the
American Legion’s emblem, thus “distanc[ing] the
State itself from the religious aspect” of the memorial’s
design. Van Orden, 545 U.S. at 701-702 (Breyer, J., concurring in judgment); see Pet. App. 52a; J.A. 931 (noting
that an American Legion symbol also appears in each
corner of the plaque).
In addition, the American Legion retained control of
the memorial for more than three decades after it was
built. Pet. App. 54a n.4. It was not until 1961 that the
Commission came to own the memorial and the median
on which it stands. Id. at 57a. And when the Commission finally acquired the property, it did so “for a secular reason—maintenance of safety near a busy highway
intersection.” Id. at 16a; see id. at 56a-57a, 69a, 77a.
Even then, the American Legion retained the right to
use the Memorial Cross for commemorative events, as
it has done for decades. Id. at 57a-59a; J.A. 1386-1387.
Those circumstances “further distance[] the State itself
from the religious aspect” of the memorial’s design.
Van Orden, 545 U.S. at 701-702 (Breyer, J., concurring
in judgment).
c. Third, the “physical setting” of the Memorial
Cross underscores its meaning as a secular war memorial. Van Orden, 545 U.S. at 702 (Breyer, J., concurring
in judgment). In Van Orden, the Ten Commandments
display sat “in a large park containing 17 monuments
and 21 historical markers, all designed to illustrate the

 28
‘ideals’ of those who settled in Texas and of those who
have lived there since that time.” Ibid. (citation omitted). The physical setting of the Memorial Cross is similar. It sits in Veterans Memorial Park, which contains
six other memorials and a “Star-Spangled Banner National Historic Trail” marker, all designed to “commemorate [local] residents in service and in death.” J.A.
1517; see Pet. App. 57a-58a; 17-1717 Br. in Opp. 11 &
n.48. The precise location of the Memorial Cross, moreover, was chosen not because it would “readily lend itself to meditation or any other religious activity,” Van
Orden, 545 U.S. at 702 (Breyer, J., concurring in judgment), but because of its “strategic position” at one end
of the National Defense Highway, itself a memorial to
fallen servicemembers, Pet. App. 52a-53a; see J.A. 928,
1082, 1246.
d. Fourth, the passage of time sheds light on how the
community has viewed the Memorial Cross. In Van Orden, the Ten Commandments display had stood for 40
years without legal challenge. 545 U.S. at 702 (Breyer,
J., concurring in judgment). Here, the Memorial Cross
went unchallenged for even longer—nearly 90 years after it was built, and over 50 years after the Commission
took ownership. That so many years went by without
legal challenge “suggest[s] that the public visiting the
[memorial] has considered the religious aspect of the
[memorial’s] message as part of * * * a broader [secular] message” of commemoration. Id. at 702-703. “[F]ew
individuals, whatever their system of beliefs, are likely
to have understood the [memorial] as amounting, in any
significantly detrimental way, to a government effort to
favor a particular religious sect.” Id. at 702. And the
many events the public has attended at the Memorial

 29
Cross over the past century—commemorating Memorial Day or Veterans Day, for instance—can only have
reinforced that secular understanding. Pet. App. 58a-59a.
e. Fifth and finally, declaring the Memorial Cross
unconstitutional would “lead the law to exhibit a hostility toward religion that has no place in [this Court’s]
Establishment Clause traditions.” Van Orden, 545 U.S.
at 704 (Breyer, J., concurring in judgment). For nearly
the last century, “the cross and the cause it commemorate[s] ha[ve] become entwined in the public consciousness.” Buono, 559 U.S. at 716 (plurality opinion). Removing the cross’s arms or razing the cross entirely—
as the panel majority suggested, Pet. App. 29a n.19—
would be “viewed by many as a sign of disrespect for the
brave soldiers whom the cross was meant to honor.”
Buono, 559 U.S. at 726 (Alito, J., concurring in part and
concurring in judgment). It would also be “interpreted
by some as an arresting symbol of a Government that is
not neutral but hostile on matters of religion and is bent
on eliminating from all public places and symbols any
trace of our country’s religious heritage.” Ibid.
Moreover, if the decision below were permitted to
stand, it would lend support to similar litigation across
the country, thereby “put[ting] at risk hundreds of monuments with similar symbols * * * , such as those in
nearby Arlington National Cemetery, where crosses of
comparable size stand in commemoration of fallen soldiers.” Pet. App. 97a (Niemeyer, J., dissenting from the
denial of rehearing en banc); see Kondrat’yev, 903 F.3d
at 1180-1182 (Newsom, J., concurring in judgment) (giving examples of crosses on public grounds across the
country). In Van Orden, Justice Breyer expressed concern that ordering removal of the State’s display there
“might well encourage disputes concerning the removal

 30
of longstanding depictions of the Ten Commandments
from public buildings across the Nation” and “thereby
create the very kind of religiously based divisiveness
that the Establishment Clause seeks to avoid.” 545 U.S.
at 704 (Breyer, J., concurring in judgment). That concern applies here with full force, and taken together
with the considerations detailed above, it should lead
the Court to conclude that the Memorial Cross does not
violate the Establishment Clause.
2. The Memorial Cross neither endorses religion nor
excessively entangles the State with religion

Although the panel majority purported to give “due
consideration” to “the factors outlined in Van Orden,”
Pet. App. 15a, it ultimately determined that the Memorial Cross is unconstitutional under the Lemon test, id.
at 29a. The majority found that the memorial satisfies
Lemon’s first prong because the “Commission has articulated legitimate secular purposes for displaying and
maintaining the Cross”—namely, “maintenance of
safety near a busy highway intersection” and “preservation of a significant war memorial.” Id. at 16a. The
majority incorrectly concluded, however, that the Memorial Cross fails Lemon’s second and third prongs. Id.
at 29a.
a. The inquiry under Lemon’s second prong is
whether a reasonable observer, “who knows all of the
pertinent facts and circumstances surrounding the symbol and its placement,” would view the Memorial Cross
as a governmental endorsement of Christian beliefs.
Buono, 559 U.S. at 721 (plurality opinion); see Zelman,
536 U.S. at 655. At a minimum, a reasonable observer
here would be aware that the Memorial Committee and
the American Legion conceived, financed, and built the

 31
cross as a war memorial; that the cross is expressly dedicated to the memory of 49 local servicemembers who
died in World War I; that the cross is inscribed with four
secular values; that the cross sits in Veterans Memorial
Park among other memorials; and that the Memorial
Cross has been a common site for commemorative and
patriotic events. Faced with that knowledge, a reasonable observer would not conclude that “the government
intends to endorse the Christian beliefs represented by
the [cross].” Lynch, 465 U.S. at 692 (O’Connor, J., concurring).
In holding otherwise, the panel majority committed
at least three errors. First, the majority erred in believing that a Latin cross communicates only a religious
message. According to the majority, even when a Latin
cross serves as a “symbol of death and memorialization,”
it does so solely because of its religious significance—i.e.,
“its affiliation with the crucifixion of Jesus Christ.” Pet.
App. 18a. Similar views were espoused by the dissenters in Lynch about the crèche display there, see 465
U.S. at 668 (Brennan, J., dissenting), and by the dissenters in Van Orden about the Ten Commandments display there, see 545 U.S. at 707 (Stevens, J., dissenting).
In both cases, however, the Court rejected the notion
that symbols or texts associated with religion can convey only a religious message. See Lynch, 465 U.S. at
680-681; 465 U.S. at 692-693 (O’Connor, J., concurring);
Van Orden, 545 U.S. at 690 (plurality opinion); 545 U.S.
at 701 (Breyer, J., concurring in judgment). Here, a
Latin cross “evokes far more than religion” when used
as a World War I memorial. Buono, 559 U.S. at 721
(plurality opinion). It “evoke[s] the unforgettable image of the white crosses, row on row, that marked the
final resting places of so many American soldiers who

 32
fell in that conflict.” Id. at 725 (Alito, J., concurring in
part and concurring in judgment).
Second, because the panel majority believed that the
Memorial Cross itself can send only a religious message, it proceeded to ask whether the display’s “secular” elements “overwhelm” its “sectarian” ones. Pet.
App. 22a. That misframes the relevant inquiry. The
question is not whether the cross’s secular inscriptions,
plaque, and setting in Veterans Memorial Park somehow “neutralize[]” the cross’s otherwise religious message. Lynch, 465 U.S. at 692 (O’Connor, J., concurring).
Rather, the question is whether, in light of the cross’s
secular context, a reasonable observer would view the
cross as a religious display in the first place. Here, the
Memorial Cross’s physical features, plaque, and location inform “what viewers may fairly understand to be
the purpose of the display” and “negate[] any message
of [governmental] endorsement” of religion. Ibid.
Third, the panel majority dismissed the “secular” elements of the display as too obscure for “passers-by” to
notice. Pet. App. 22a. The majority reasoned, for example, that passers-by might not read the plaque at the
base of the memorial because it is “on only one side of
the Cross,” is “badly weathered,” and was, for a time,
“obscured” by “bushes.” Id. at 23a. Imagining an observer who views the Memorial Cross from a poor angle,
at a distance, or with poor eyesight hardly does justice
to the inquiry. Lemon’s endorsement test hypothesizes
a different kind of observer, one “who knows all of the
pertinent facts and circumstances surrounding the symbol and its placement.” Buono, 559 U.S. at 721 (plurality opinion). Those facts include information that can
be gleaned from fully and fairly viewing the challenged
display, and here that information makes clear that the

 33
Memorial Cross commemorates local servicemembers
lost in World War I.
b. The panel majority likewise erred in concluding
that the Memorial Cross involves “excessive entanglement between government and religion.” Lemon, 403
U.S. at 614. The majority pointed to the fact that the
Commission “has spent at least $117,000 to maintain the
Cross and has set aside an additional $100,000 for restoration.” Pet. App. 28a. The past funds, however, were
spent over the course of more than 50 years, to pay for
such things as groundskeeping, lighting, and repairs.
Id. at 59a-60a; J.A. 69. And the future funds are hardly
an exorbitant sum for maintaining a 93-year-old memorial. More important, none of these expenditures entangles the State in religion in any way. They would all be
necessary to maintain any similar war memorial in that
location, regardless of its shape. At the least, the Commission’s expenditures do not involve the kind of “comprehensive, discriminating, and continuing state surveillance” of religion that constitutes excessive entanglement. Mueller v. Allen, 463 U.S. 388, 403 (1983)
(quoting Lemon, 403 U.S. at 619). *

The panel majority also reasoned that the Memorial Cross excessively entangles the State with religion because “the Commission
is displaying the hallmark symbol of Christianity in a manner that
dominates its surroundings and * * * excludes all other religious
tenets.” Pet. App. 28a. That reasoning simply repeats the majority’s erroneous conclusion that the cross fails Lemon’s second prong
because it conveys governmental endorsement of a religious rather
than a secular message.
*

 34
CONCLUSION

The judgment of the court of appeals should be
reversed.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General *
JEFFREY BOSSERT CLARK
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
FREDERICK LIU
Assistant to the Solicitor
General
ANDREW C. MERGEN
LOWELL V. STURGILL JR.
JOAN M. PEPIN
Attorneys

DECEMBER 2018

*

The Solicitor General is recused in this case.