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Not Over Yet: Humanists Appeal Bladensburg Victory

After a federal court declared the Bladensburg WWI Veterans Memorial constitutional in November, the American Humanist Association strikes back with an appeal

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January 14, 2016

Nearly two years have passed since the American Humanist Association sued for the removal or destruction of the Bladensburg World War I Veterans Memorial in Bladensburg, Maryland—and the battle continues.

After the United States District Court for the District of Maryland ruled in November 2015 that the cross-shaped memorial was constitutional, the American Humanist Association appealed the ruling to the U.S. Court of Appeals for the Fourth Circuit. The American Humanist Association filed the notice of appeal on December 28, 2015.

“We will continue our defense of the Bladensburg WWI Veterans Memorial,” said Kelly Shackelford, President and CEO of Liberty Institute. “Our victory at the District Court set an important precedent for veterans memorials around the nation. Now we have the opportunity to expand that precedent with yet another victory in favor of this historic veterans memorial, which will help protect memorials across the country.”

The 90-year-old veterans memorial came under attack in February 2014 when the American Humanist Association sued for its removal or destruction, claiming that its cross shape on public ground violated the Establishment Clause of the First Amendment. Liberty Institute and its volunteer attorney team at the Washington, D.C. office of international law firm Jones Day intervened in the lawsuit on behalf of The American Legion to defend the memorial.

BACKGROUND—THE COMMEMORATION OF SACRIFICE

Erected by a local post of The American Legion in 1925, the Memorial honors 49 men of Prince George’s County, Maryland who died serving in WWI.

According to an article by Richard Wilson published in Prince George’s Magazine in 1983, the Memorial Committee formed by local citizens to raise money for the Memorial included ten mothers who had lost sons in the war. In 1920, Mrs. Martin Redman, the mother of the first sailor from the county to lose his life in World War I, became the treasurer for the committee. In a letter to Senator John Walter Smith, who had donated money for the cause, Mrs. Redman wrote:

“The chief reason I feel so deeply in this matter, my son, [W.]F. Redman, lost his life in France and because of that I feel that our memorial cross is, in a way, his grave stone.”

By 1922 the Committee’s efforts to fund and erect the Memorial had faltered and a local post of The American Legion stepped in and took charge, erecting the Memorial in 1925. It bears the names of 49 fallen servicemen from Prince George’s County, other commemorative words and dates, and a quote from President Woodrow Wilson:

“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.”

The seal of The American Legion is prominently emblazoned on the two primary faces of the monument at the intersection of the cross arms, and the only other words inscribed on the memorial are “VALOR; ENDURANCE; COURAGE; DEVOTION” with one on each of the four sides of the monument.

Today, the Memorial sits in Veterans Memorial Park, a public area with several other memorials commemorating other conflicts in American history and honoring those who served in them.

THE CONSTITUTIONALITY OF CROSS-SHAPED MEMORIALS

As part of their lawsuit challenging the historic Memorial, the American Humanist Association filed a motion for summary judgment in May 2015, asking the Court to order that the government remove the memorial from the property, completely demolish the memorial, or remove the “arms” of the memorial to make it a “non-religious slab or obelisk.”

Liberty Institute and Jones Day responded in June, filing a cross-motion for summary judgment on behalf of The American Legion. Liberty Institute and Jones Day’s motion argued that

  • An abundance of legal precedent supports the use of a cross shape as a proper memorial on government property;
  • Removing or altering this memorial would demonstrate the very hostility toward religion prohibited by the First Amendment; and
  • Tests used by the federal courts to uphold the First Amendment show that the Bladensburg Veterans Memorial is well within the requirements of the Constitution.

The District Court’s November 2015 opinion upholding the memorial reflected that these arguments were heard and agreed with.

In its decision, the Court cited cases Liberty Institute participated in previously, including the 2012 U.S. Supreme Court victory in Salazar v. Buono, which saved the cross-shaped Mojave Desert WWI Veterans Memorial from destruction by the American Civil Liberties Union (ACLU).

Quoting Salazar v. Buono, the Court’s ruling explained that

[T]he Monument “evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.” Buono, 559 U.S. at 721 (plurality opinion). The evocation of foreign graves is particularly relevant here because, unlike crosses challenged in other cases, the Monument explicitly memorializes forty-nine servicemen who died in Europe during World War I…

Another case cited by the Court in November was Van Orden v. Perry, a 2004 U.S. Supreme Court victory which found that the Ten Commandments monument displayed outside the Texas state Capitol was constitutional. Liberty Institute was part of that case as well, serving alongside the attorney general of Texas.

Using the train of logic established by the Van Orden decision, the Court wrote of the Bladensburg Veterans Memorial:

The Monument was constructed and financed by the American Legion and a private group of citizens whose purpose was to remember and honor Prince George’s County’s fallen soldiers. See Van Orden, 545 U.S. at 701 (Breyer, J., concurring) (noting the secular purpose of the display’s founders). The American Legion’s seal is “displayed on the [Monument], prominently acknowledg[ing] that the [American Legion] donated the display, a factor which, though not sufficient, thereby further distances” the Commission from any potential religious aspect of the Monument… Much like the Ten Commandments display in Van Orden, the location of the Monument “does not readily lend itself to meditation or any other religious activity.” Van Orden, 545 U.S. at 702 (Breyer, J., concurring).

“Even though the American Humanist Association appealed the Bladensburg victory at the district court level, the Court’s opinion will still serve as a powerful tool for the continued defense of the Bladensburg memorial and other veterans memorials across the nation,” Kelly Shackelford said.

THE POWER OF PRECEDENT

Despite the American Humanists Association’s appeal, Liberty Institute attorneys are preparing for another victory on behalf of the Bladensburg WWI Veterans Memorial, which they believe will be added to the list of cases like Salazar v. Buono and Van Orden v. Perry, strengthening the defense of veterans memorials that may come under attack in the future.

“We knew there was a possibility that the American Humanist Association would appeal November’s victory,” said Roger Byron, Senior Counsel for Liberty Institute. “The appeal does nothing to weaken the District Court’s opinion in favor of the Bladensburg Veterans Memorial. If anything, it gives us the chance to win more court victories for this historic veterans memorial, and strengthen the defense for all the nation’s veterans memorials.”

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