American Humanist Ass'n v. Maryland-National Capital Park
American Humanist Ass'n v. Maryland-National Capital Park
Opinion of the Court
MEMORANDUM OPINION
Presently pending and ready for resolution in this Establishment Clause case is a motion for summary judgment filed by Plaintiffs American Humanist Association, Steven Lowe, Fred Edwords, and Bishop McNeill. (ECF No. 80).
I. Background
A. Factual Background
Standing at the intersection of Maryland Route 450 and U.S. Route 1 in Bladens-burg, Maryland, is a memorial monument consisting, in part, of a large concrete Latin cross that is approximately forty feet tall. (ECF No. 83-6). Plaintiffs denoted the memorial as “The Bladensburg Cross” in the complaint, but acknowledge that it is also referred to as the “Peace Cross.” Other references in the record use the name “Memorial Cross.” Defendants use the term “Bladensburg Memorial” or some variation. In this opinion, except when referring to the name used in an historical reference, the term “Monument” will be used. The Monument and the median- are currently owned by the Commission. (ECF Nos. 83-44; 83-45): The symbol of the American Legion is displayed in the middle of both faces of the cross. (ECF No. 83-2). The cross sits on a rectangular base, and the West face of the base contains a plaque listing the names of forty-nine men from Prince George’s County who died in World War I. The plaque also reads: “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,” and includes a quotation from President Woodrow Wilson. Four words are inscribed directly above the base, on the bottom of the cross itself, one on each'íace: “valor; endurance; courage; devotion.” An American flag flies on one side of the cross.
1. Creation of the Monument
The initial effort to construct and finance the Monument began in late 1918 and early 1919, led by a group of private citizens organized as the Prince George’s County Memorial Committee.(the “Memorial Committee”). (ECF Nos. 83-4, at 2; 83-10, at 4; 83-14; 83-25, at 2; 83-36, at 3). The fundraising effort garnered significant publicity at the time, including reports highlighting the link between the Monument and the National Defense Highway. (ECF No. 83-31). These early organizers circulated fundraising pledge sheets that read:
We, the citizens of Maryland, trusting in God, the supreme ruler of the universe, pledge faith in our brothers who gave their all in the World War to make the world safe for democracy. Their mortal bodies have turned to dust, but their spirit lives to guide us through life in the way of godliness, justice, and liberty.
. With our motto, “one god, one country and one flag,” we .contribute to this memorial cross commemorating the memo,ry of those, who have not. died in vain.
(ECF No. 80-32, at 3). The Memorial Committee circulated a fundraising flyer announcing the upcoming creation of the Monument and the National Defense Highway (now Maryland Route 450), which runs from Bladensburg to Annapolis. (ECF No. 83-25, at 2). The flyer noted that the “Memorial Cross will stand in a strategic position at the point where the Washington-Baltimore Boulevard joins the De
those who come to the Nation’s Capital to view the wonders of its architecture and the sacred places where their laws are made and administered may, before this Cross, rededicate[] themselves to -the principles of Their fathers and renew the fires of patriotism and loyalty to the nation which prompted these -young men to rally to the defense of the righfi'And here the friends and loved ones of those who were in the great conflict will- pass daily over a highway memorializing their boys who made the supreme - sacrifice.
(Id.).
A groundbreaking ceremony was held for the Monument and the National'Defense Highway on September 28, 1919. (ECF No. 83-4, at 4). At the time of the groundbreaking, the land was owned by the Town of Bladensburg (the “Town”). (ECF Nos. 83-6, at 10; 83-37; 90, at 17; 92, at 10). Families of the' veterans participated in the ceremony, and Josephus Daniels, then-Secretary of the Navy, was the primary speaker. (ECF Nos. 83-9, at 5; 83-10, at 15). Secretary Daniels addressed both the Monument and the National Defense Highway: “A concrete highway ... that will never fail in rain or sun, that every day in the year will present an unalterable face to every duty expected of it, as did the men in whose honor it was named;- and a cross that will stand for time and eternity, like the principles they defended.”. (Id.). According to records from the Prince George’s County Historical Society Library, “The Marine Band provided music, several speeches were given by local officials and the exercises were concluded by the singing of The Star Spangled Banner.” (ECF No. 83-10, at 15 (internal quotation marks omitted)).
The Memorial Committee continued its fundraising efforts, but ultimately failed to raise enough money and abandoned their efforts in 1922. (Id. at 16). Because construction on the Monument had begun but was unfinished, the local post of the American Legion (the “Snyder-Farmer -Post”) assumed responsibility for completing the Monument. (ECF Nos. 83-12-, at 26-27; 83-36, at 4-5). The parties dispute if the Town officially transferred the land to the Snyder-Farmer Post.
authorize^] the Snyder-Farmer Post of the American Legion to complete -said Cross and its surroundings in such manner as the Post may deem advisable; and, to this end, the Town Commissioners of Bladensburg, Maryland do hereby assign and grant to the said Snyder-Farmer Post #3, American Legion, that parcel of ground upon which the cross now stands and that part necessary to complete the park around said cross, to the perpetual care of Snyder-Farmer Post #3 as long as it is in existence, and should the said Post go out of existence the plot to revert to the Town of Bla-densburg, together with - the cross and its surroundings.
(ECF No. 83-37). Counsel for the Snyder-Farmer Post contended that this resolution was recorded in the land .records of Prince George’s County on April 30, 1935. (See ECF No. 83-45, at 2). Subsequent historical accounts appear to note either that the Town- did in fact officially convey the land to the American Legion post (see,
The Snyder-Farmer Post succeeded in raising the funds required to complete the Monument. (ECF No. 83-4, at 4). The Snyder-Farmer Post held a dedication ceremony for the Monument on July 12, 1925. (ECF Nos. 83-4, at 4; 83-39). According to a contemporaneous news account, Representative Stephen Gambrill of Maryland’s Fifth Congressional District delivered the keynote address, stating, in part:
Where we of the past generation have failed to prevent war, perhaps you young men of the American Legion or the mothers who gave their sons to the conflict may succeed.
And
You men of Prince George’s county fought for the sacred right of all to live in peace and security and by the token of this cross, symbolic of Calvary, let us keep fresh the memory of our boys who died for a righteous cause.
(ECF No. 83-39). The Army Music School band provided music for the dedication, local officials and figures delivered remarks, and local clergy offered an invocation and benediction. (ECF Nos. 80-28).
2. Subsequent Control and Use of the Monument and Veterans Memorial Park
In 1935, due to increased traffic on the roads surrounding the Monument, the Maryland state legislature “authorized and directed” the State Roads Commission “to investigate the ownership and possessory rights” of the area surrounding the Monument and to acquire the land “by purchase or condemnation.” (ECF No. 83-40, at 2). Plaintiffs contend that the tract of land in question was adjacent to the Monument, but did not include the Monument itself— they maintain that the Monument has .always been owned by a government entity. (ECF No. 90, at 19). Defendants assert that the Snyder-Farmer Post owned the Monument and the land on which it sat. (ECF Nos. 83-1, at 31-32; 92, at 10). The record is not entirely clear as to exactly what land was transferred and when. Ultimately, the State Roads Commission obtained title to the tract mentioned in the state statute and conveyed it to the Commission by deed in 1960. (ECF No. 83-44). On March 1, 1961, to resolve any ambiguities, the Snyder-Farmer Post “transfer[ed] and assign[ed] to [the Commission] all its right, title and interest in and to the Peace Cross, also originally known as the Memorial Cross, and the tract upon which it is located and surrounded and bounded by the curbings and boundary lines of the highways of the State Roads commission adjoining the said Cross parcel.” (ECF No. 83-45, at 4). The Commission “assume[d] the obligation of maintaining, repairing and otherwise caring for” the Monument, but the Snyder-Farmer Post reserved “the right and the privilege to hold memorial services to departed veterans and other ceremonies upon the parcel on appropriate dates and occasions.” (Id. at 5). The Commission continues to own the Monument and the land on which it sits. (See ECF No. 83-13, at 6).
The Monument now sits amidst additional monuments as part of Veterans Memorial Park. (ECF No. 83-8, at 2). The National Park Service placed among the memorials a “Star-Spangled Banner National Historic Trail Marker” highlighting the Monument and the other monuments in the park. (ECF No. 86-11). In 1944, local American Legion posts dedicated a World War II memorial across the street from the Monument honoring the men and women of Prince George’s County who died in that war. (ECF No. 83-9, at 7).
Numerous events and gatherings have been held at the Monument and Veterans Memorial Park, the vast majority ,in corn-memoration of Memorial Day or Veterans Day. An invocation and benediction are often included. (ECF Nos. 80-41; 83-1, at 35-36; 83-9, at 6; 83-11, at 9-11). Local posts of the American Legion have hosted many of the Memorial Day and Veterans Day programs at the Monument and in the surrounding park, which often feature local government officials and representa-fives of other veterans’ organizations. (ECF No. 83-11, at 9-11). The Town, through organizations such as the Bladens-burg Patriotic Committee and the Bla-densburg Promotional Committee, also has held events in conjunction with Memorial Day, Veterans Day, the Fourth of July, and in remembrance of September 11th at the Monument or in the surrounding park. (ECF Nos. 80-7, at 7-8; 83-11, at 12). The events generally follow the same format and include a presentation of colors, the national anthem, an invocation, a keynote speaker (typically a veteran, military, local government, or American Legion official), songs or readings, the laying of a wreath or flowers, a benediction, and a reception. (See, e.g., ECF Nos. 80-51; 83-68). Local American Legion posts, the Town, the Commission, and other government entities have also hosted rededications and other patriotic ceremonies at the Monument. (See, e.g., ECF Nos. 80-50; 83-53). Although Defendants and the American Legion contend that no religious services have been held at the Monument, Plaintiffs point to a Washington Post column indicating that there were at least three Sunday religious services held at the Monument in 1931.
While the Monument was built with private donations, the Commission has devoted resources over the years to maintain and illuminate it. Bladensburg Rotarians funded the installation of lights to illuminate the cross in 1965. (ECF No. 80-47). The Commission funds routine mainte
B. Procedural History.
. Plaintiffs commenced this action under 42 U.S.C. § 1983 on February 25, 2014, contending that the ownership, maintenance,. and prominent display of the Monument on public property violates the Establishment Clause of the First Amendment of the United States Constitution, as applied to Maryland by the Fourteenth Amendment. They seek a declaratory judgment,, an injunction, nominal damages; attorneys’ fees, and costs. (ECF No. 1).
On April 25, 2014, prospective amici curiae moved for leave to appear jointly as amicus curiae in support of Defendants and to file an amicus curiae memorandum. (ECF No. 11). By memorandum opinion and order issued on September 18, 2014, the undersigned granted in part the motion to appear jointly as amicus curiae and for leave to file an amicus curiae memorandum. (ECF Nos. 46; 47). The proposed amid curiae were permitted to participate as amicus curiae. The court noted, however, because no dispositive motions had yet been filed, the proposed memorandum submitted1 by the amici curiae would not be considered at that time. On September 15, 2015, the same prospective amici curiae filed an unopposed second motion for leave to file a memorandum in support of Defendants together with their memorandum. (ECF No. 94). On October 1, 2015, the Center for Inquiry filed a motion for leave to appear as amicus curiae in support of Plaintiffs and to file an amicus curiae memorandum. (ECF Nos. 95). Intervenor-Defendants do not oppose this motion, but the' Center for Inquiry did not receive a response from Defendants. Also on October 1, 2015, the Council on American-Islamic Relations (“CAIR”) filed a motion for leave to appear as amicus curiae in support of Plaintiffs and to file an amicus curiae memorandum. (ECF No. 96). CAIR attempted to obtain consent from Defendants and Intervenor-Defendants, but had not received a response by the time of filing.
II. Standard of Review
A court may enter summary judgment only if there is no genuine dispute as-to any material fact and the moving party is
“A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that there is a genuine issue for trial.’ ” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed. R. Civ. P. 56(e)). “A mere scintilla of proof.. .will not suffice to prevent num-mary judgment.” Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). ‘fif the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). At the same time, the court must construe the facts that are presented in the light most favorable to the party opposing the motion. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Emmett, 532 F.3d at 297.
“When cross-motions for'summary .judgment are before a court, the court examines each motion separately, employing the familiar standard under Rule ;56 of the Federal Rules of Civil Procedure.” Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d 351, 354 (4th Cir. 2011). The court must deny both motions if it finds there is a genuine dispute of material fact, “[b]ut if there is no genuine -issue and one or the other party is-entitled to prevail as a matter of law, the court will render judgment.” 10A Charles A. Wright, et al., Federal Practice & Procedure § 2720 (3d ed. 1998).
III. Analysis
A. Establishment Clause Jurisprudence and Framework
The First Amendment provides that “Congress shall make no law respecting an establishment of religion,” U.S. Const, amend. I, and the Supreme Court of the United States has applied this principle against the states and their subdivisions through the Fourteenth Amendment. See Moss v. Spartanburg Cnty. Sch. Dist. Seven, 683 F.3d 599, 608 (4th Cir. 2012) (citing Everson v. Bd. of Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947)). Despite the straightforward simplicity of the clause, “[t]here is ‘no single mechanical formula that can accurately draw the constitutional line’ ” in every Establishment Clause case. Myers v. Loudoun Cnty. Pub. Schs., 418 F.3d 395, 402 (4th Cir. 2005) (quoting Van Orden v. Perry, 545 U.S. 677, 699, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Breyer, J., concurring)). Indeed, Establishment Clause jurisprudence is a law professor’s dream, and a trial judge’s nightmare. In the words of Justice Clarence Thomas, “Establishment Clause jurisprudence [is] in shambles.” Utah Highway Patrol Ass’n v. Am. Atheists, Inc., — U.S. —, 132 S.Ct. 12, 13, 181 L.Ed.2d 379 (2011) (Thomas, J., dissenting from the denial of certiorari.)
Courts, including the United States Court of Appeals for the Fourth Circuit, often use the three-part test articulated by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2135, 29 L.Ed.2d 745 (1971), to assess alleged violations of the Establishment Clause. See, e.g., Am. Atheists, Inc. v. Port Auth., 760 F.3d 227, 238 (2d Cir. 2014); Moss, 683 F.3d
In 2005, a plurality of the Supreme Court recognized that, although commonly used, the Lemon test has not been uniformly applied to Establishment Clause cases. Van Orden, 545 U.S. at 684-86, 125 S.Ct. 2854 (plurality opinion). In determining the constitutionality of a display of the Ten Commandments outside the Texas State Capitol, the plurality noted that the Lemon test “is not useful in dealing with [such] passive monument[s].” Id. at 686, 125 S.Ct. 2854. Instead the plurality’s “analysis [was] driven both by the nature of the monument and by our Nation’s history.” Id. Justice Breyer, in a controlling opinion concurring in the judgment, see Trunk v. City of San Diego, 629 F.3d 1099, 1107 (9th Cir. 2011) (recognizing that “Justice Breyer’s concurrence provides the controlling opinion”); Myers, 418 F.3d at 402 (treating Justice Breyer’s opinion as controlling), noted that in “borderline cases” there is “no test-related substitute for the exercise of legal judgment.” Van Orden, 545 U.S. at 700, 125 S.Ct. 2854 (Breyer,v J., concurring). Such judgment “must reflect and remain faithful to the underlying purposes of the [Establishment and Free Exercise] Clauses, and it must take account of context and consequences measured in light of those purposes.” Id.
Not surprisingly, the parties disagree whether Lemon or Van Orden controls this case. (ECF Nos. 83-1, at 38; 90, at 36; 92 at 16), Courts deciding Establishment Clause cases post-Van Orden also disagree. The Fourth Circuit, immediately after Van Orden, applied Justice Breyer’s “legal judgment” test from Van Orden to the exclusion of the Lemon test, in upholding a statute providing for daily, voluntary recitation of the Pledge of Allegiance in Virginia’s public schools. Myers, 418 F.3d at 402. Myers is, however, the only Fourth Circuit case to cite to Van Orden. In recent years, the Fourth Circuit has continued to' apply the Lemon test with no mention of Van Orden. Moss, 683 F.3d at 608; Glassman, 628 F.3d at 146; see also Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1030 n. 14 (10th Cir. 2008) (“Supreme Court Justices have harshly criticized Lemon... .Nevertheless, the Lemon test clings to life because the Supreme Court, in the series of splintered Establishment Clause cases since Lemon has never explicitly overruled the case.”). Other courts have applied some hybrid form of the two tests. See Salazar v. Buono, 559 U.S. 700, 130 S.Ct. 1803, 176 L.Ed.2d 634 (2010) (plurality. opinion); Trunk, 629 F.3d at 1107. Ultimately, here, it is not necessary to resolve the legal conundrum. Both tests “require the [c]ourt to inquire into the nature, context, and history” of the Monument and lead to the same result. See Hewett, 29 F.Supp.3d at 611 (citing Trunk, 629 F.3d at 1107). Even if Justice Breyer’s opinion in Van Orden controls, the Lemon test remains a “useful guidepost[ ]” for the court’s analysis. Van Orden, 545 U.S. at
B. Lemon Test
As noted above, “[t]o pass muster under the Establishment Clause, govérnment conduct must be driven in part by a secular purpose’, (2) must have a primary effect that neither advances nor inhibits religion; and (3) must not excessively. entangle church and State.” Moss, 683 F.3d at 608 (emphases in original) (citing Lemon, 403 U.S. at 612-13, 91 S.Ct. 2135). Additionally, as part of Lemon’s second prong, the Fourth Circuit examines “whether the governmental use .of an object with religious meaning.. ,ha[s] .the effect of ‘endorsing’ religion.” Lambeth v. Bd. Of Comm’rs of Davidson Cnty., 407 F.3d 266, 269 (4th Cir. 2005) (citing Cnty. of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 593-94, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989)).
1. Secular Purpose
The secular purpose prong of the Lemon test “presents a ‘fairly low hurdle; which may be cleared by finding a plausible secular purpose.’ ” Glassman, 628 F.3d at 146 (quoting Ehlers-Renzi v. Connelly Sch. of the Holy Child, Inc., 224 F.3d 283, 288 (4th Cir. 2000)). The government’s purpose need not be “exclusively secular,” Jenkins v. Kurtinitis, No. ELH-14-1346, 2015 WL 1285355, at *28 (D.Md. Mar. 20, 2015) (citing Brown v. Gilmore, 258 F.3d 265, 276 (4th Cir. 2001)), as ■ long as the government action is not “entirely motivated by a purpose to advance religion.” Hewett, 29 F.Supp.3d at 611 (citing Lambeth, 407 F.3d at 270). “Under applicable Supreme Court precedent, a ‘legitimate secular purpose’ supporting a challenged governmental action will suffice to satisfy the Lemon test’s first prong,. .unless the. alleged secular purpose is in fact pretéxtual.” Lambeth, 407 F.3d at 270 (citing Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290, 308-09, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000); Lynch v. Donnelly, 465 U.S. 668, 681, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)). Courts should “not lightly attribute unconstitutional motives to the government, particularly where [it] can discern a plausible secular purpose.” Hewett, 29 F.Supp.3d at 612 (quoting Davenport, 637 F.3d at 1118) (internal quotation marks omitted).
Plaintiffs argue that displaying the Monument has a religious purpose. First, they argue that a Latin cross, which the Monument is, is “patently religious.” (ECF No. 80-1, at 29-30). Plaintiffs also argue that the history of the cross “underscores its religious purpose.” (Id. at 30-32). They also contend that the use of a religious symbol to achieve a secular goal is impermissible when a non-religious means will suffice. Defendants assert that the Commission’s sole purpose for acquiring the land in the 1960s was not religious because it acquired the land for “highway expansion, traffic safety, protection of the Legion’s residual property interests, [and] historic preservation” reasons. (ECF No. 83-1, at 46). Defendants also argue that, even if the intent of the Monument’s builders is relevant, the record shows that their intent was “commemorative rather than religious.” (Id. at 47-52).
Although the Latin cross is undeniably a religious symbol, “[t]he fact that the monument conveys.some religious meaning does not cast doubt on- the [government’s] valid secular purposes -for its display.” Hewett, 29 F.Supp.3d at 612 (citing City of Elkhart v. Books, 532 U.S. 1058, 1062, 121 S.Ct. 2209, 149 L.Ed.2d 1036 (2001)); see also Buono, 559 U.S. at 715, 130 S.Ct. 1803 (plurality opinion) (“Although certainly a Christian symbol, the cross was not em-placed on Sunrise Rock to promote a Christian message.”); Mellen v. Bunting,
The focus of the first Lemon prong is “on the government’s purpose, not that of a private actor.” Davenport, 637 F.3d at 1118. The alleged- government conduct challenged in the complaint is the “ownership, maintenance and prominent display on public property” of the Monument. (ECF No. 1 ¶ 55). The Commission’s actions are clearly driven by a plausible, legitimate secular purpose. The Commission owns the Monument and surrounding land because it sits in the median of a busy highway interchange. The government determined that private ownership of the median would “create a serious menace to traffic” in light of increased use of the surrounding roads. (ECF No. 83-40, at 2). It is the government’s secular responsibility to maintain the land on which the Monument sits just as it would any other highway median. In addition, the Commission’s maintenance and display of the Monument independent of traffic concerns is also driven by a secular purpose, maintaining and displaying a “historically- significant war memorial” that has honored fallen soldiers for almost a century. See Trunk, 629 F.3d at 1108 (holding that the government, - in acquiring a memorial in the shape of a cross, articulated a plausible, legitimate secular purpose of “preserv[ing] a historically significant war memorial”). -Nothing in the record indicates that the Commission’s maintenance and display of the Monument is driven by a religious purpose whatsoever. The evidence of the Commission’s secular purpose is uncontroverted.
Even the purpose of the private citizens who were behind the Monument’s construction 90 years ago Was a predominantly secular-one.'Plaintiffs refer to remarks made throughout the existence of the Monument in an attempt to illustrate its religious nature. (ECF Nos. 80-1, at 30-32; 90, at 52-55). Notably, a fundraising pledge sheet that was- circulated contained expressly religious language (ECF No. 80-32, at 3 (“We, the citizens of Maryland, trusting in God, the supreme ruler of the universe, pledge - faith in our brothers.’’))'; the Monument was sometimes described in religious terms such as “Cross of Calvary” and “Sacrifice Cross” (ECF No. 80-26); and many events at the Monument contain some religious components (ECF Nos. 80-51; 83-68). Even if these statements or events carry some-religious meaning, they do not show an- “entirely - religious purpose” for the Monument, and, in fact, there is overwhelming evidence in the record showing that the predominant purpose of the Monument was for secular commemoration. The Monument’s groundbreaking was a predominantly secular- affair that also included the groundbreaking of the National Defense Highway. (ECF No. 83-25, at 2-3). Additionally, -although the construction of a cross can be for a religious purpose, in the period immediately following World War I, it could also be motivated by “the sea of crosses” marking graves of .American servicemen who died overseas. (ECF No. 83-5, at 14);. cf. Davenport, 637 F.3d at 1118. The Monument’s secular commemorative purpose is reinforced by the plaque, the American Legion’s seal, and the words “valor,” “endur-
The ownership, maintenance, and display of the Monument by the Commission thus easily satisfies the purpose prong of the Lemon test.
2. Primary Effect
Lemon’ s second prong requires the court to determine if the challenged display’s “principal or primary effect is to advance or inhibit religion.” Lambeth, 407 F.3d at 270. The primary question is “whether an informed, reasonable observer would view the display as an endorsement of religion.” Id. at 272. “[T]he reasonable observer is aware of the purpose, context,. and history of the symbol at issue.” Hewett, 29 F.Supp.3d at 613 (emphasis in original)(quoting Davenport, 637 F.3d at 1119). “The inquiry is not ‘whether' there is any person who could find an endorsement of ■ religion, whether some people may be offended by the display, or whether some reasonable person might think [the government] endorses religion.’ ”
Plaintiffs argue that the Monument endorses religion because, “as a Christian cross, it is inherently religious.” (ECF No. 90, at 56). Additionally, Plaintiffs assert that the prominence of the Monument on the traffic island and relative isolation from the other memorials in Veterans Memorial Park enhance its endorsement of religion. Finally, Plaintiffs argue that the history and use of the Monument “deepens its religious message.” (ECF No. 80-1, at 43). Defendants, counter that the Monument contains numerous secular commemorative aspects that would indicate to the reasonable observer that its purpose is commemorative rather than religious. (ECF No. 83-1, at 55). Defendants also contend that the location of the Monument within Veterans Memorial Park further supports its secular effect. (Id. at 56-57). Defendants also argue that the historical use of the Monument for veterans’ commemorative events strertgthens its secular effect, _ - .
Plaintiffs cite multiple cases addressing a cross memorial on public land to support the proposition that “courts have been virtually unanimous in concluding that the
Controlling Fourth Circuit precedent also supports Defendants’ assertion that the Monument does not have the effect of endorsing, religion. The Fourth Circuit has addressed other passive displays of alleged religious significance in Lambeth and Smith v. Cnty. of Albemarle, Va., 895 F.2d 953 (4th Cir. 1990). In Lambeth, the Fourth Circuit held that the inscription of the motto “In God We Trust” on the county
3. Excessive Entanglement
Lemon’s third prong requires courts to assess whether “the challenged display has created an ‘excessive entanglement’ between government and religion.” Lambeth, 407 F.3d at 272-73. The Fourth Circuit has noted that “[t]he kind of excessive entanglement of government and religion precluded by Lemon is characterized by ‘comprehensive, discriminating, and continuing state surveillance’ of religious exercise.” Id. at 273 (quoting Lemon, 403 U.S. at 619, 91 S.Ct. 2135). Considering the inscription of “In God We Trust” in. the county government center, the Fourth Circuit held that it was not excessive entanglement because the display did “not require pervasive monitoring or other maintenance by public authorities.” Id. Here, Plaintiffs argue that the Commission’s “expenditure of funds to maintain and light” the Monument excessively entangles government and religion.
C. Van Orden
-Despite continued judicial use of the Lemon test to assess the constitutionality of such displays, a 2005 plurality of .the Supreme Court determined that the Lemon test “is not useful in dealing with [such] passive monument[s].” Van Orden, 545 U.S. at 686, 125 S.Ct. 2854 (plurality opinion).
Here, for many of the same reasons discussed in the application ■ of the Lemon test, the Monument does not violate the Establishment Clause under Van Orden’s legal judgment test. As in Lemon, it is essential to consider the context and history of the display to determine its constitutionality. See Van Orden, 545 U.S. at 701, 125 S.Ct. 2854 (Breyer, J., concurring). 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, 125 S.Ct. 2854 (Breyer, J., concurring) (noting the secular purpose of the display’s founders). The American Legion’s seal is “displayed on the1 [Monument], prominently acknowledging] 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. Id. Furthermore, the Monument is located in Veterans Memorial Park and is surrounded by other war memorials and secular monuments. (ECF No. 83-3); see Van Orden, 545 U.S. at 702, 125 S.Ct. 2854 (Breyer, J., concurring) (“The' physical- setting of the monument, moreover, suggests little or nothing of the sacred.”). 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, 125 S.Ct. 2854 (Breyer, J.,' concur-ririg). Rather, the location among the other monuments of Veterans Memorial Park underscores its secular and commemorative nature. In addition, the Monument has gone unchallenged' for decades. See id. at 702-03, 125 S.Ct. 2854 (discussing how the fact that the monument existed for 40 years before a legal challenge shows that “few individuals.. .[were] likely to have understood the monument as amounting, iii any significantly detrimental way, to a government effort” to promote or endorse religion). Finally, the Monument has been used almost exclusively as a site to commemorate veterans on secular patriotic holidays for its entire history. (ECF Nos. 80-41; 83-1, at 35-36; 83-9, at 6; 83-11, at 9-
For the foregoing reasons, the Monument satisfies both the Lemon test and the “legal judgment” test from Van Orden.
D. Motions for Leave to File Amici Curie Memoranda
Also pending are three motions for leave to file a memorandum as amicus curiae. One motion was filed in support of Defendants on September 15, 2015 by the same eleven individuals and the Veterans of Foreign Wars of the United States who filed in 2014, and the motion, contains a memorandum that is “essentially identical to the original memorandum” preyiously filed. (ECF .No. 94). On October 1, 2015, two motions in support of Plaintiffs were filed by the Center for Inquiry. Responses and CAIR. (ECF Nos. 95; 96). Memoranda are not attached to these two motions for leave."As the undersigned discussed in a prior memorandum opinion: '
There is no Federal Rule of Civil Procedure that applies to motions for leave to appear as amicus curiae in a federal district court. District courts therefore have discretion whether to grant or deny such leave and often look for guidance to Rule 29 of the Federal Rules of Appellate Procedure, which applies to amicus briefs at the federal appeals level. See, e.g., Jin v. Ministry of State Sec., 557 F.Supp.2d 131, 136 (D.D.C. 2008); Bryant v. Better Bus. Bureau of Greater Md., Inc., 923 F.Supp. 720, 728 (D.Md. 1996); Washington Gas Light Co. v. Prince George’s County Council, Civ. No. DCK-08-0967, 2012 WL 832756, at *3 (D.Md. Mar. 9, 2012). Rule 29 indicates that amici should state “the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.” Fed. R. App. P. 29(b)(2). As noted by Judge Davis in Bryant, “[t]he aid of amici curiae has been allowed at the trial level where they provide helpful analysis of the law, they have a special interest in the subject matter of the suit, or existing counsel is in need of assistance.” Bryant, 923 F.Supp. at 728 (citing Waste Mgmt. of Pa., Inc. v. City of New York, 162 F.R.D. 34, 36 (M.D.Pa. 1995)).
(ECF No. 46, at 5-6). At this point, . the issues have been comprehensively and fully briefed'by all parties. Although the prospective amici have demonstrated a special interest in the outcome of the suit, there are no indications that the proposed memoranda would provide helpful legal analysis beyond the thorough-job done by the parties’ counsel. Accordingly, the motions filed by prospective amici curiae will be denied and the court will not consider any documents filed by movants.
IV. Conclusion
For the foregoing reasons, the motion for summary judgment filed by Plaintiffs American Humanist Association, et al. will be denied. The motions for summary judgment filed by Defendant Maryland-National Capital Park and Planning Commission and Intervenor-Defendants American Legion, et al. will be granted. The motions for leave to file memoranda of amici curiae
. Because the American Legion filed its motion for summary judgment only to assist the . Commission in its defense, the two motions will be considered together. See Hewett v. City of King, 29 F.Supp.3d 584, 598 (M.D.N.C. 2014), Accordingly, the Commission and the American Legion will be collectively referred to as the "Defendants.”
. Unless otherwise noted, the following facts are undisputed.
. The legal ownership of the land from 1922 until 1956 is disputed, but this fact is not material to the outcome of this case. ’ The record indicates that the Snyder-Farmer Post had control over the land from 1922 until 1956, and a government entity controlled the land at all other times.
. Plaintiffs provide evidence supporting their assertion that some religious services were held at the Monument. On the other hand, their allegations regarding the involvement of the Ku Klux Klan with the Monument are not supported by the record. Plaintiffs point to news reports regarding Klan events in Prince George’s County held in the 1920s, but only one of these reports, a community calendar entry in The Washington Post, mentions the Monument, noting that "Robed ldansmen will direct persons desiring to attend from the peace cross at Bladensburg to the fiery cross at Lanham.” (ECF No. 80-45, at 5). The rally was not held at the Monument and there is no indication that the Monument was an official meeting point. Plaintiffs’ suggestion of some connection is simply wrong. (See ECF No. 92, at 22 n.7).
. After this case was filed, the National Parle Service placed the Monument on the National Register of Historic Places. (ECF No. 97-2).
. The specific injunctive relief sought in the Motion for Summary Judgment includes removal of the Monument, its demolition, or removal of the arms. (ECF No. 80, at 2).
. It is for this reason that the parties’ inclusion of individuals’ reactions to the Monument is not particularly relevant or. helpful for the reasonable person analysis.
. Plaintiffs refer to invocations and benedictions at these events as “prayers.” Such activities at public ceremonies, outside of the public school context, generally do not violate the Establishment Clause. Town of Greece, N.Y. v. Galloway, — U.S. -, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014); Newdow v. Roberts, 603 F.3d 1002, 1019-21 (D.C.Cir. 2010) (Kavanaugh, J., concurring in the judgment), cert. denied, 563 U.S. 1001, 131 S.Ct. 2441, 179 L.Ed.2d 1235 (2011).
. Plaintiffs also argue that the existence of the cross creates "religion-based political division” in violation of Lemon’s third prong. (ECF No. 80-1, at 52). The Fourth Circuit has indicated, however, that this "political divisiveness rubric” is limited to assessing government funding of religious schools, and "is thus inapplicable to the circumstances of this case.” Lambeth, 407 F.3d at 273.
. Justice Breyer noted that Van Orden was most applicable in "borderline cases” because applying Lemon would be difficult. Van Orden, 545. U.S. at 700, 125 S.Ct. 2854 (Breyer, J. concurring). The facts, history, and context of the Monument do not present a particularly difficult "borderline” Lemon analysis. A brief discussion of Van Orden is warranted, however, due to the uncertain status of Establishment Clause jurisprudence.
Reference
- Full Case Name
- AMERICAN HUMANIST ASSOCIATION v. MARYLAND-NATIONAL CAPITAL PARK and Planning Commission
- Cited By
- 1 case
- Status
- Published