Partner Michael Lockerby has authored an amicus brief asking the U.S. Supreme Court to prevent the court-ordered removal of a towering cross-shaped memorial from a busy intersection in Prince George’s County, Maryland.
The memorial was ordered removed or altered last year by the Fourth U.S. Circuit Court of Appeals on the grounds that the 40-foot tall Latin cross, established in memory of soldiers who died in World War I, is a predominately Christian symbol and constitutes an endorsement of Christianity.
But Lockerby’s brief, filed August 2 on behalf of The Rutherford Institute, a Virginia-based civil liberties organization, maintains that the monument, known as the Peace Cross, is a secular tribute meant to evoke the rows of wooden Latin crosses that mark the graves of servicemen killed in battle.
It says the Fourth Circuit’s decision widens the existing split among circuits as to whether the Establishment Clause requires the eradication of all religious symbols in the public realm. “This split in the circuits should be corrected before any more damage is done to the Peace Cross, not to mention the First Amendment,” Lockerby wrote.
The marble and concrete structure, flanked by an American flag and decorated with a small star, was built in 1925 to honor 49 local men who died in World War I. It was erected on private land using private funds, but was eventually turned over to a state agency, the Maryland-National Capital Park and Planning Commission, which has spent about $217,000 to maintain and renovate it.
The legal challenge to the 93-year-old memorial began with a lawsuit by the American Humanist Association, a Washington-based group that represents atheists and agnostics, and three county residents. They contended that a giant cross on government property violates the Establishment Clause of the First Amendment.
In 2015, a federal court judge in Maryland held that the monument does not violate the Establishment Clause because the cross has a secular purpose, it neither enhances nor inhibits religion, and it does not have the primary effect of endorsing religion.
But the Fourth Circuit disagreed, finding that the monument’s “sectarian elements easily overwhelm the secular ones,” in part because of its size and its prominent location. The court also said the cross, displayed on public land and maintained with taxpayer money, is unconstitutional because it “excessively entangles the government in religion.” And it ordered that the structure be razed, altered so that it is no longer a cross, or subject to “alternative arrangements that would not offend the Constitution.”
In March, the appeals court refused, in a narrow 8-6 vote, to rehear the case en banc. Three months later, the Park and Planning Commission asked the Supreme Court to review the decision.
The high court is not expected to decide whether to hear the case until after it returns from its summer recess.