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Judicial Watch • Am Legion v Am Humanists cross amicus 1717, 18

Am Legion v Am Humanists cross amicus 1717, 18

Am Legion v Am Humanists cross amicus 1717, 18

Page 1: Am Legion v Am Humanists cross amicus 1717, 18

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Nos. 17-1717, 18-18 THE
Supreme Court the United States
_________
THE AMERICAN LEGION, AL.,
Petitioners,
AMERICAN HUMANIST ASSOCIATION, AL.,
Respondents.
MARYLAND-NATIONAL CAPITAL PARK
AND PLANNING COMMISSION,
Petitioner,
AMERICAN HUMANIST ASSOCIATION, AL.,
Respondents.
_________ Writs Certiorari the United States Court
Appeals for the Fourth Circuit
_________
BRIEF AMICUS CURIAE JUDICIAL
WATCH, INC. SUPPORT PETITIONERS
_________
James Peterson
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
jpeterson@judicialwatch.org
Meredith Liberto
1925 Vince Road
Virginia Beach, 23464
Counsel for Amicus Curiae
Dated: December 24, 2018
LEGAL PRINTERS
LLC Washington, 202-747-2400 legalprinters.com
QUESTIONS PRESENTED
Whether the constitutionality passive display
incorporating religious symbolism should assessed
under Lemon Kurtzman, Van Orden Perry, Town Greece Galloway, some other test.
Whether 93-year-old memorial the fallen
World War unconstitutional merely because
shaped like cross.
TABLE CONTENTS
QUESTIONS PRESENTED .......................................
TABLE AUTHORITIES .....................................
INTERESTS THE AMICUS CURIAE .................1
SUMMARY ARGUMENT.....................................1
ARGUMENT ...............................................................2
LEMON KURTZMAN HAS CAUSED
CONFUSION AND INCONSISTENCY
ESTABLISHMENT CLAUSE PRECEDENT
AND SHOULD OVERRULED .....................3 THE FRAMERS INTENDED THE
ESTABLISHMENT CLAUSE
RESTRAIN FEDERAL ESTABLISHMENT RELIGION AND NOT
INDIVIDUAL RIGHT ....................................4 EVEN THE ESTABLISHMENT
CLAUSE APPLIED THE STATES,
THE FRAMERS INTENDED
ESTABLISHMENT CLAUSE VIOLATIONS REVIEWED WITH STANDARD LEGAL COERCION ................................8
II.
UNDER ANY ESTABLISHMENT CLAUSE
STANDARD TEST, THE MEMORIAL
CONSTITUTIONAL.. .......................................10
iii THE MEMORIAL CONSTITUTIONAL
UNDER THE LEGAL COERCION
STANDARD ..................................................11 THE MEMORIAL CONSTITUTIONAL
UNDER THE VAN ORDEN TEST .............12 EVEN UNDER THE UNWORKABLE
LEMON TEST, THE MEMORIAL
CONSITUTIONAL .......................................17
CONCLUSION ..........................................................23
APPENDIX-Various photographs Memorials......1a
TABLE AUTHORITIES
CASES
Am. Humanist Ass Maryland-National
Capital Park Planning Comm
874 F.3d 195 (4th Cir. 2017) ........................ passim
Am. Humanist Ass Maryland-National
Capital Park Planning Comm
147 Supp. 373
(D. Md. 2015) .............................. 10, 11, 13. 19,
Elk Grove Unified School District Newdow,
542 U.S. (2004)................................... 12,
Engel Vitale, 370 U.S. 421 (1962) .........................10
Everson Board Education,
330 U.S. (1947)...............................................3,
Good News Club Milford Cent. Sch.,
533 U.S. (2001)...............................................19
Hunt McNair, 413 U.S. 734 (1975) ......................18
Kansas Colorado, 206 U.S. (1907) ....................3
Lambeth Bd. Comm rs, 407 F.3d 266 (4th Cir.
2005) (cert. denied, 2005 U.S. LEXIS 8388
(2005)) ................................................................20
Lee Weisman, 505 U.S. 577 (1992) .........................9
Lemon Kurtzman, 403 U.S. 602 (1971) ........ passim
Lynch Donnelly, 465 U.S. 668 (1984) .................6,
Marsh Chambers, 463 U.S. 783 (1983) ...................9
Meek Pittenger, 421 U.S. 349 (1975) .....................18
McCreary ACLU, 545 U.S. 844 (2005) ...................9
Santa Independent School District Doe,
530 U.S. 290 (2000).............................................18
South Carolina Katzenbach,
383 U.S. 301 (1966)...............................................3
Town Greece Galloway,
572 U.S. 565 (2014) ........................ 11, 12,
Van Orden Perry,
545 U.S. 677 (2005) ............................ 10, 12,
Wallace Jaffee, 472 U.S. (1985) ........................4
Waltz Tax Commission New York,
397 U.S. 664 (1970) ..............................................3
CONSTITUTIONAL PROVISIONS,
STATUTES, AND REGULATIONS
U.S. CONST. amend. ..................................................5
H.R. Res. 44th Cong. (1875) ....................................7
OTHER AUTHORITIES Annals Cong. (1789) ............................................4
American Battle Monuments Commission
Commemorative Sites Booklet
www.abmc.gov/sites/default/files/publications/EN_99
7_020_ABMC-Commemorative-Sites-BookletMAR2018_508.pdf .....................................................15
Cape Henry Memorial Fort Story, Virginia,
http://nsdac.org/work-of-thesociety/historical/markers/cape-henry-cross/ ...........16
https://www.capitalgazette.com/lifestyle/ph-ac-cnmemorial-battle-of-bladensburg-0821-20140818story.html ............................................................13,
Fonte, Zelman Simmons-Harris: Authorizing
School Vouchers, Education Winning
Lottery Ticket, Loy. Chi. 479 (2003) ..........7
McConnell, Establishment and Disestablishment the Founding, Part Establishment
Religion, Wm. Mary Rev. 2105 (2003) ....6
https://www.medalsofamerica.com/distinguishedflying-cross ................................................................17
Munoz, The Original Meaning the
Establishment Clause and the
Impossibility Its Incorporation, Pa. Constitutional 585
(2006) ........................................................
vii
Pilgrim Hall Museum
http://www.pilgrimhallmuseum.org/thanksgiving_proclamations.htm ........................6
https://valor.defense.gov/description-of-awards/......17
https://visitpearlharbor.org/medals-honor-highlyregarded-medals-military/ ..................................17
INTEREST THE AMICUS CURIAE
Judicial Watch, Inc. Judicial Watch nonpartisan educational foundation that seeks
promote transparency, integrity, and accountability government and fidelity the rule law. Judicial
Watch regularly files amicus curiae briefs advance
its public interest mission and has appeared
amicus curiae this Court many occasions.
Judicial Watch seeks participate amicus
curiae for two reasons. First, Judicial Watch believes
this important opportunity for the Court
clarify its Establishment Clause jurisprudence and
finally abandon Lemon Kurtzman and return
Establishment Clause precedent its intended
standard legal coercion. Second, Judicial Watch
seeks highlight the dangerous path this case plays overt hostility toward religion the courts.
SUMMARY ARGUMENT
Establishment Clause precedent tale
irreconcilable judicial decisions and uncertainty,
which has produced sense exasperation
lawmakers, judges, and individuals alike. Rather
than carve out another case-specific holding, the
Court can clarify the role the Establishment Clause Petitioners and Respondents granted blanket consent for the
filing amicus curiae briefs this matter. counsel for
party this case authored this brief whole part, and
person entity other than Judicial Watch, Inc. made
monetary contribution intended fund the preparation and
submission this brief. relation the States and set out unambiguous
legal standard which Establishment Clause
violations can measured. doing so, the Court
should adopt the solution that most closely mirrors
the Framers intent: reaffirm that the
Establishment Clause was not intended
individual right, but merely restraint federal
power. Should this solution seem too broad
onerous, the Court should, the very least, adopt the
legal coercion standard intended the Framers.
This standard would make clear that not every
offended individual could file suit absent legal
coercion.
Adopting comprehensive and straightforward
legal coercion standard this case quickly and
clearly demonstrates that the Memorial
constitutional. fact, applying any the possible
Establishment Clause tests brings about the same
conclusion: the Memorial constitutional.
ARGUMENT
Perhaps other constitutional subject matter
has caused more confusion and inconsistency than
Establishment Clause precedent. This situation can traced back directly act imprudent
interpretation this Court Everson Board
Education,
which
offhandedly
applied
the
Establishment Clause the States through the
Fourteenth Amendment.
The history the
Establishment Clause and plain meaning the
words chosen the Framers demonstrate that the
Clause was intended restrain federal interference
with religion.
There indication that the
Establishment Clause was intended
individual right. This nonchalant shift applying
the Establishment Clause individual right and
incorporated against the States has created the
impossible task determining how protect both
religion and the individual. This impossible task
manifested clearly the subsequently unpredictable
Establishment Clause precedent. This case the
perfect opportunity for the Court rectify the error
made Everson and return legal standard true the Framers intent.
LEMON KURTZMAN HAS CAUSED
CONFUSION AND INCONSISTENCY
ESTABLISHMENT CLAUSE PRECEDENT
AND SHOULD OVERRULED. has long been the tradition the courts
employ the tool historical study and discover the
meanings words its quest properly interpret
the Constitution. See Waltz Tax Commission
New York, 397 U.S. 664, 681-82 (1970), South
Carolina Katzenbach, 383 U.S. 301, 324 (1966),
Kansas Colorado, 206 U.S. 46, (1907). With
regards the Establishment Clause, both the history
and the language are readily available and offer
clear picture the original intent the
Establishment Clause and the irreconcilable path
taken Lemon Kurtzman, 403 U.S. 602 (1971)
through Everson Board Education the
Township Ewing, 330 U.S. (1947). This Court
has expressed concern about Lemon, refrained from
using Lemon, and vigorously articulated its
limitations. The time has come overrule Lemon. THE FRAMERS INTENDED THE
ESTABLISHMENT CLAUSE
RESTRAIN FEDERAL
ESTABLISHMENT RELIGION
AND NOT INDIVIDUAL
RIGHT.
Historical accounts the vigorous debates
surrounding the ratification the Constitution, and particular, the inclusion the Bill Rights, show
the Framers concerns regarding the states
protections against federal intrusion well
individual rights. See Wallace Jaffee, 472 U.S. 38,
92-92 (1985) (Rehnquist, J., dissenting).
The
language the so-called Religion Clauses was
robustly debated. Id. (quoting Annals Cong., 424,
434, 729 (1789)). After heated debates between the
Federalists and Anti-Federalists, Madison began the
difficult task drafting the Bill Rights. See Munoz,
The Original Meaning the Establishment Clause
and the Impossibility Its Incorporation, Pa.
Constitutional 585, 619-24 (2006). Madison first
proposal read, The civil rights none shall
abridged account religious belief, nor shall any
national religion established, nor shall the full and
equal rights conscience any manner, any
pretext, infringed. Id. 625 (quoting Annals
Cong. 451). Madison was met with two primary
concerns. First, that the amendment might
interpreted abolishing religion. And second, that
the amendment was altogether unnecessary because
Congress had explicit power establish religion.
Id. 626-27. Absent from concerns articulated
during these debates was any fear state
involvement religion desire prohibit such.
Given the textual and logical difficulties posed
incorporation, however, there warrant for
transforming the meaning the Establishment
Clause without firm historical foundation. Town
Greece Galloway, 572 U.S. 565, 607 (2014) (Thomas,
J., concurring.) the end, the language ratified plainly
restrained federal establishment religion. This
point found both the words chosen and ratified, well the history and acceptance of, state
establishments. ratified, the Establishment
Clause prohibits Congress from making any law
respecting establishment religion.
U.S.
CONST. amend. Respecting was language adopted the joint committee. See Munoz 630. Both the
Senate and House versions the amendment sent
the joint committee stated that Congress shall make law establishing.... (emphasis added) Id. 62829. adding the word respecting the joint
committee, and subsequently the ratifiers, were
making clear that Congress had power with
reference [or] with regard religious
establishment. Id. 630. The text and history
the Establishment Clause strongly suggests that federalism provision intended prevent Congress
from interfering with state establishments. Thus,
unlike the Free Exercise Clause, which does protect individual right, makes little sense
incorporate the Establishment Clause. Elk Grove
Unified School District Newdow, 542 U.S. 49-50
(2004) (Thomas, J., concurring).
History
supports
this
plain
language
interpretation the Establishment Clause.
addition the public support religion the public
square the time the ratification the Bill
Rights, least six States had established churches.
See Galloway, 605 (Thomas, J., concurring), see
also McConnell, Establishment and Disestablishment the Founding, Part Establishment Religion,
Wm. Mary Rev. 2105, 2110 (2003). Had the
Framers intended the Establishment Clause
protect individual rights, these state establishments
would have been unconstitutional. 1875, Congressman James Blaine proposed amendment the Constitution (the so-called
The examples government support for religion the public
square are plentiful including: the Northwest Ordinance 1787,
Washington Thanksgiving Proclamations 1789 and 1795,
Adams Days Fasting and Humiliation 1798 and 1799,
Madison Thanksgiving Proclamations 1814 and 1815,
President Lincoln Thanksgiving Proclamations 1862, 1863,
and 1684, unbroken line yearly Thanksgiving
Proclamations from President Johnson Thanksgiving
Proclamations 1865 President Trump 2018, Executive
Orders and official presidential announcements proclaiming
Christmas and Thanksgiving national holidays and releasing
federal employees these religious national holidays, and
compensating congressional and military chaplains. These are
but few examples governmental support for religion the
public
square.
See
Pilgrim
Hall
Museum
http://www.pilgrimhallmuseum.org/thanksgiving_proclamations.htm; see also Lynch Donnelly,
465 U.S. 668, 676 (1984).
Blaine Amendment which, passed, would have
prohibited States from establishing religion. The
proposed amendment read: State shall make any
law respecting establishment religion,
prohibiting the free exercise thereof; and money
raised taxation any State for the support
public schools, derived from any public fund, nor
any public land devoted thereto, shall ever under
the control any religious sect; nor shall any money raised lands devoted divided between
religious sects denominations. See Munoz 63435 (quoting H.R. Res. 44th Cong. (1875)); see also
Fonte, Zelman Simmons-Harris: Authorizing
School Vouchers, Education Winning Lottery Ticket, Loy. Chi. 479, 496-97 (2003). While the
amendment did not garner enough votes pass, the
significance the attempt worth noting. the
Establishment Clause was individual right and
incorporated against the States, the Blaine
Amendment
would
have
been
completely
unnecessary.
Yet, only seven years after the
ratification the Fourteenth Amendment, Congress
was debating amendment whose sole purpose was restrict state establishments religion. See
Munoz, 635.
Both the plain meaning the language and the
historical context the Establishment Clause clearly
demonstrate that the Framers intended the Clause restriction federal interference with and
establishment religion and not individual right.
The Blaine Amendment passed the House but fell shy
passing the Senate with vote 28-16 and abstaining. See
Fonte Footnote 119.
The Everson Court never examined the history
plain language the Establishment Clause. Instead,
the Court simply declared that the Fourteenth
Amendment was interpreted make the prohibitions the First applicable state actions abridging
religious freedom. There every reason give the
same application and broad interpretation the
establishment religion clause. Everson, 330 U.S.
15. The problem is, the Court did not give any
reasons. EVEN THE ESTABLISHMENT
CLAUSE APPLIED THE
STATES, THE FRAMERS INTENDED
ESTABLISHMENT CLAUSE
VIOLATIONS REVIEWED
WITH STANDARD LEGAL
COERCION.
Rectifying the fundamental constitutional error
made Everson and disincorporating the
Establishment Clause would overturn more than
seventy years precedent. See Munoz 632. Should
the Court determine that our legal system has become
too dependent incorporated Establishment
Clause, solution can found that would bring
Establishment Clause jurisprudence closer the
Framers intent. Overruling Lemon and applying
legal coercion standard would line with the
Framers intent and would result consistent
application the law.
The current state Establishment Clause
precedent without any consistent standard test
for litigating violations Courts apply the Lemon
test, ignore the Lemon test, apply the
endorsement test, version the endorsement
test, the Van Orden test combination these
tests, outright rejection all. The result
this judicial chaos the hollowing the intent the
Establishment Clause such degree that three
purportedly offended atheists can take their offense
all the way the U.S. Supreme Court over making
eye contact with 93-year-old war memorial.
The solution the judicial chaos simple: create uniform standard review for Establishment
Clause violations that reflects the intent the perfect snapshot this inconsistency March 2005.
that day this Court issued two Establishment Clause decisions
regarding passive displays the Ten Commandments. See Van
Orden Perry, 545 U.S. (2005) and McCreary ACLU, 545
U.S. 844 (2005). One used Lemon and concluded the display was
unconstitutional while the other disregarded Lemon and
concluded the display was constitutional. Lemon Kurtzman, 403 U.S. 602, 612-13 (1971) (the infamous
three-prong test requiring secular purpose, advancement
nor inhibition religion, and excessive government
entanglement). See e.g., Marsh Chambers, 463 U.S. 783, 791 (1983) (no
mention Lemon the majority opinion and reflected
primarily the unique history legislative prayer). Lynch Donnelly, 465 U.S. 668, 687 (1984) Connor,
concurring) (primary focus being whether the government
was communicating religious message). See e.g., McCreary ACLU, 545 U.S. 844, 859-60 (2005)
(combining the Lemon and endorsement tests) Van Orden Perry, 545 U.S. 677, 686 (2005) (focusing the
history and nature display). Lee Weisman, 505 U.S. 577 (1992) (rejected requests
reconsider Lemon and then neglected its use).
Clause. previously stated Section I.A., that
intent was prohibit federal establishment
religion. Therefore, only governmental actions that
legally coerce individual participate refrain
from religious action would create cause action.
This would complement the Free Exercise Clause
rather than cause conflict. such, [e]very
acknowledgement religion would not give rise
Establishment Clause claim, courts would not act
theological commissions, judging the meaning
religious matters. Most important, our precedent
would capable consistent and coherent
application.
Van Orden 697 (Thomas, J.,
concurring).
II.
UNDER ANY ESTABLISHMENT CLAUSE
STANDARD TEST, THE MEMORIAL
CONSTITUTIONAL. alleged Establishment Clause violation before
the Court one surrounding 93-three-year-old
World War WWI war memorial Memorial
the shape cross. The Memorial, which honors
forty-nine men from the local community who gave
their lives the cause freedom during WWI,
located the intersection Maryland Route 450 and
U.S. Route Bladensburg, Maryland.
Am.
Humanist Ass Maryland-National Capital Park Planning Comm n,147 Supp. 373, 376 (D. Md.,
Nov. 30, 2015). Begun and built private venture honor the local heroes, the ownership the
See e.g., Engel Vitale, 370 U.S. 412, 430 (1962) (the
individual right pray was rejected perceived
establishment religion).
Memorial and the land which stands was
transferred Maryland-National Capital Park and
Planning Commission Commission 1960. Id.
378. The reason for this transfer settled factual
matter.
[T]he Commission sole purpose for
acquiring the land the 1960 was [f]or highway
expansion, traffic safety, protection the Legion
residual
property
interests,
[and]
historic
preservation. Id. 382. The Respondents injury one unwelcome direct contact with the
Memorial. Specifically, Respondents drive past the
Memorial and don like the shape it. THE MEMORIAL
CONSTITUTIONAL UNDER THE
LEGAL COERCION STANDARD.
The Court should apply the aforementioned legal
coercion standard articulated Justice Thomas
Galloway this case. The Memorial requires
action, allegiance, and assent. fact, the
Memorial requires nothing all. Respondents face religious coercion, penalty, nor force law. See
Galloway 608 (Thomas, J., concurring).
Respondents not much face subtle coercive
pressure. Id. 610. They claim unwelcome direct
contact, which something even shy offense
which this Court has deemed insufficient cause action. Offense, however, does not equate
coercion. Adults often encounter speech they find appeal, Respondents did not challenge the District Court
finding that the Commission purpose was secular. Am.
Humanist Ass Maryland-National Capital Park Planning
Comm 874 F.3d 195, 218 (4th Cir. 2017) (Gregory, J.,
dissenting).
disagreeable; and Establishment Clause violation not made out any time person experiences sense affront from the expression contrary religious
views. Galloway 589. See also Newdow Connor, J., concurring judgment). Respondents
have not faced any form legal coercion with regard the Memorial and the Fourth Circuit should
reversed. THE MEMORIAL
CONSTITUTIONAL UNDER THE VAN
ORDEN TEST. Van Orden, the Court rejected the Lemon test not useful dealing with the sort passive
monument that Texas erected its Capitol grounds.
Instead, our analysis driven both the nature
the monument and our Nation history. Van
Orden 686. Given the similar nature the
passivity the Memorial, analysis under Van Orden appropriate. applying Van Orden the
Memorial, clear that both the nature the
Memorial and our Nation history using similar
memorials honor its war dead, support the
constitutionality the Memorial.
While the lower courts refer the Memorial
different terms and highlight different aspects, there factual debate about the physical description
the Memorial.
The Memorial forty-foot
The Fourth Circuit acknowledged Van Orden and pledged
due consideration given the factors outlined Van Orden.
However, the Fourth Circuit opinion completely devoid
any real analysis Van Orden occupies just two small
paragraphs. Am. Humanist Ass 874 F.3d 206, 208.
monument the form Latin-style cross. See Am.
Humanist, 874 F.3d 201. The American Legion
symbol near the center both the front and back
sides. the cross are the words VALOR,
ENDURANCE, COURAGE, and DEVOTION,
inscribed one each side above the pedestal. See
Appellant Petition for Writ Certiorari (June
25, 2018). The pedestal itself contains large plaque
which reads DEDICATED THE HEROES
PRINCE GEORGE COUNTY, MARYLAND WHO
LOST THEIR LIVES THE GREAT WAR FOR
THE LIBERTY THE WORLD. Id. Under this
dedication are the names the forty-nine men
whom the Memorial dedicated. Id., see also
Appendix App. 2a. The Memorial construction
was completed 1925. Am. Humanist, 874 F.3d
201. the time completion, the Memorial was
located the end the National Defense Highway.
App. Pet see also App. 6a. time passed and
the traffic flow increased, the Memorial came
the median intersection which now Maryland
Route 450 and U.S. Route Am. Humanist, 147
Supp. 376. The Memorial has become part larger commemorative undertaking called
Veterans Memorial Park. See App. Pet. 7-8.
noted Petitioners, this Park includes memorials
and monuments honoring veterans from all major
armed conflicts and September 11th, including two 38foot-tall statues American and British soldier
facing off across the Anacostia River. Id.
The Circuit Court incorrectly stated that other monument the area taller than ten feet. Am. Humanist, 874 F.3d
202. addition the two 38-foot-soldier statues, Undaunted
Battle
feet
height.
See
The Circuit Court concluded that the shape the
Memorial, the lack secular features, and the size
and location made the Memorial violative display.
Am. Humanist, 874 F.3d 206-09.
This
unnecessarily narrow analysis completely discounted
the fact that the Memorial predated most the
current surroundings.
The Memorial was not
originally located intersection. This narrow
view also ignored the fact that dispersing the added
monuments and memorials was dictated the space
available, not nefarious plan evangelize. Had the
County added the Undaunted Battle monument,
the WWII Honor Roll Memorial, and Veterans
Memorial the intersection, would have created
visual impairment for motorists. The monuments
and memorials are necessarily spaced out given the
limitations the land. The Memorial was not placed the intersection alone create conspicuous
display the Circuit Court speculated.
Am.
Humanist, 874 F.3d 209. Van Orden, this Court did not require the
presence secular features the Ten
Commandments display conclude the display was
constitutional. Rather, this Court acknowledged the
religious nature the Ten Commandments well
the role the Ten Commandments has had law and
government. Van Orden, 545 U.S. 690-92. Simply
having religious content promoting message
consistent with religious doctrine does not run afoul the Establishment Clause. Id. 690. The Circuit
Court holding disregards this point completely. The
https://www.capitalgazette.com/lifestyle/ph-ac-cn-memorialbattle-of-bladensburg-0821-20140818-story.html
weathering the American Legion symbols
dedication plaque are inapplicable the
constitutionality the Memorial because the cross
itself easily identified symbol both
Christianity and death and sacrifice. The Memorial
does not need secular elements because, like the Ten
Commandments display Van Orden, represents
two equally important ideas. its decision, the Circuit Court concluded that
the Memorial was different from the Van Orden Ten
Commandments because the Ten Commandments
was well known being tied our Nation history
and government. Am. Humanist, 874 F.3d 208.
order reach this conclusion, the Circuit Court
decreed that the cross symbol was just too
religious. Id. 207. discounted the use the cross symbol death and sacrifice, specifically,
veteran sacrifice. Id. Harkening back the Everson
debacle, the Circuit Court proclaimed the crosses
commemorating millions U.S. veterans who
sacrificed their lives overseas moment.
Id. 207-08; see also American Battle Monuments
Commission Commemorative Sites Booklet found
www.abmc.gov/sites/default/files/publications/EN_99
7_020_ABMC-Commemorative-Sites-BookletMAR2018_508.pdf. The audacity such statement
discounting the lives those who secured our
freedom removing the freedom honor them
staggering. addition the effrontery such statement,
the Circuit Court factually incorrect about the
history the cross use. From almost the moment
the first settlers landed America, the cross has been
present. The particular use the cross symbol veteran sacrifice dates back least far the
Revolutionary War. Examples this can seen
Yorktown, Virginia, Cypress Hill, New York, and New
Canaan, Connecticut. See App. 13a-15a. And use the cross military commemorative fashion did
not end with the Revolutionary War but has
continued used. Examples this can seen
Arlington, and Fort Stanton, New Mexico. See
App. 16a-18a.
Even temporary fashion, the cross has become
synonymous with veteran sacrifice can seen
throughout the country small white crosses are put during significant military holidays such
Memorial Day and Veterans Day. See App. 19a23a. The cross also plays significant symbolic role military honors and awards. The Distinguished
Service Cross, the Navy Cross, the Air Force Cross,
and the Distinguished Flying Cross all contain
cross. All are high personal awards worn members the Armed Forces while uniform.
The
See e.g., the Cape Henry Memorial Fort Story, Virginia
which commemorates the 1607 landing. http://nsdac.org/workof-the-society/historical/markers/cape-henry-cross/. App. 12a.
Yorktown and Cypress Hills are cemeteries while New
Canaan example cross-shaped veterans memorial
town green. See App. 13a-15a.
Even non-military use, the simple cross the most
frequently used symbol family members and friends those
killed traffic accidents. Often times the crosses are erected
government property but would not seen endorsement particular creed religion but symbol the loss loved
one.
Distinguished Service Cross was instituted 1918,
the Navy Cross 1919, the Distinguished Flying
Cross 1926, and the Air Force Cross 1964 the
Air Force Cross being after Everson.
See
https://valor.defense.gov/description-of-awards/; see
also
https://visitpearlharbor.org/medals-honorhighly-regarded-medals-military/;
https://www.medalsofamerica.com/distinguishedflying-cross. seen through the Van Orden lens, the Memorial every bit constitutional the Ten
Commandments display.
The cross, while
unabashedly religious symbol, has additional longstanding historical use military memorials and
awards this country. Under Van Orden, the Circuit
Court decision must reversed. EVEN UNDER THE UNWORKABLE
LEMON TEST, THE MEMORIAL
CONSITUTIONAL.
While Amicus reiterates the need overrule
Lemon Kurtzman for the sake saving the
integrity the Establishment Clause, not even the
Lemon test can dispute the constitutionality the
Memorial. Decided 1971, the Court articulated
three-prong test for analyzing state statutes
providing aid church-related schools. Lemon
612-13. Under Lemon, court considers whether the
offending government action (1) had secular
purpose; (2) did not advance, nor inhibit religion its
primary purpose; and (3) did not foster excessive
government entanglement. Id. Just two years after
Lemon, the Court referred the three-prong analysis offering only helpful signposts. Hunt McNair,
413 U.S. 734, 741 (1975). See also Meek Pittenger,
421 U.S. 349, 359 (1975) (Lemon test provided only
guidelines
The Fourth Circuit relied primarily Lemon
its analysis and injected its own bias order fit its
square peg into round hole. The Fourth Circuit
concluded that the Memorial violated the
Establishment Clause for three reasons. First,
concluded that reasonable observer would fairly
understand the Cross have the primary effect
endorsing religion. Am. Humanist, 874 F.3d 210.
Second, the Fourth Circuit concludes that the
Commission use funds maintain and restore
the Memorial excessive entanglement. Id.
212. And third, concluded that the Commission
displaying the Memorial manner that dominates
its surroundings and not only overwhelms all the
other monuments the park, but also excludes all
other
religious
tenets
was
excessive
entanglement. Id. The Fourth Circuit analysis
erroneous all counts.
The primary examination involved the second
Lemon prong has become known the endorsement
test. See Lemon 612. The inquiry whether, objective observer, the government action could
viewed endorsing religion.
See Santa
Independent School District Doe, 530 U.S. 290, 308
(2000). The objective (or reasonable) observer
not just ordinary individual but [an individual]
aware the history and context the community
and forum which the religious display appears.
Am. Humanists, 874 F.3d 210.
concluded Good News Club, this Court
[T]he endorsement inquiry not about the
perceptions particular individuals saving
isolated nonadherents from discomfort for this reason that the reasonable observer the endorsement inquiry must deemed
aware the history and context the
community and the forum which the
religious [speech takes place].
Good News Club Milford Cent. Sch., 533 U.S. 98,
119 (2001) (emphasis original). what can only logically perceived bias
against religion, the Fourth Circuit concludes that
while reasonable observer would know the history dedication the WWI veterans, the reasonable
observer would more importantly know that the
private organizers pledged devotion faith God,
and that the same observer knows that Christianonly religious activities have taken place the
Cross. Am. Humanists, 874 F.3d 210 (emphasis
added). emphasizing the actions the original
private organizers and three religious services
conducted its more than ninety-year lifespan, and
deemphasizing the purpose and nature the
Memorial, the Circuit Court reinvents the
reasonable observer standard. The Memorial was
undisputedly erected war memorial and has
remained war memorial for more than ninety years. fact, has become part Veterans Memorial
Park consisting memorials local veterans
WWII, Korea, and Vietnam, September 11th
memorial walkway and garden, and War 1812
memorial. Am. Humanists, 147 Supp. 37879. Several other memorials and monuments are
being installed. Id. The site has been used primarily
for military commemoration ceremonies for Memorial
Day and Veterans Day.
The original private organizers religious devotion not, and never has been, incorporated into the
Memorial. What private citizens devoted themselves has never been recognized Establishment
Clause cause action not does involve
governmental action. The Fourth Circuit erred
concluding that reasonable observer would view the
Memorial governmental endorsement religion,
rather than war memorial.
The primary examination involved the third
Lemon prong whether the government action will
foster excessive government entanglement with
religion. Lemon, 403 613. Courts look for
government action that comprehensive,
discriminating, and continuing state surveillance
religious exercise. Lambeth Bd. Comm rs, 407
F.3d 266, 273 (4th Cir. 2005) (cert. denied, 2005 U.S.
LEXIS 8388 (2005). accordance with the legal
transfer title the Memorial and property,
Petitioners have been responsible for the
Public prayers during the Memorial Day and Veteran Day
ceremonies are not violations the Establishment Clause. See
Galloway, 572 U.S. 565; see also Newdow Roberts, 603 F.3d
1002, 1019-21 (D.C. Cir. 2011) (Kavanaugh, J., concurring the
judgement) (cert. denied, 563 U.S. 1001 (2011)).
maintenance the Memorial. The Circuit Court
focuses the funds spent evidence excessive
entanglement. Am. Humanists, 874 F.3d 211.
However, because the Memorial not itself
endorsement religion, funds spent maintenance
and repair Petitioners are not excessive
entanglement. Respondents did not challenge the
secular purpose the Memorial. Id. 218 (Gregory,
J., dissenting). logically follows that the purpose secular, the funds cannot for the purpose
continuing state surveillance religious exercise.
The Fourth Circuit erred finding that funds spent the Memorial are excessive entanglement
because the Memorial not endorsement
religion.
Lastly, the Circuit Court concluded the Petitioners
creates excessive entanglement displaying the
hallmark symbol Christianity manner that
dominates its surroundings and not only overwhelms
all other monuments the park, but also excludes all
other religious tenets. Am. Humanists, 874 F.3d
212.
The Circuit Court found the Memorial
aggrandizes the Latin cross manner that says
any reasonable observer that the Commission either
places Christianity above other faiths, views being
American and Christian one the same, both.
Id. Here again have evidence anti-religious
bias. order for the Circuit Court conclusion
accurate, the reasonable observer needs have
forgotten the history the Memorial, the evidence has been offered the Circuit Court
Respondents that other religious tenets have requested
included Park and excluded.
unchallenged purpose the Memorial, and the
geographical limitations the Memorial situated intersection. Veteran Memorial Park
necessarily spread out due the challenge being
located and near busy intersection. Additionally,
the Memorial was erected more than ninety years ago
prior the highway expansions and prior the
occurrence other wars memorialized the Park.
The Memorial size was not dictated the
Commission. The location was not dictated the
Commission. There simply evidence excessive
government entanglement. Even under Lemon, the
Fourth Circuit decision must reversed.
CONCLUSION
For the foregoing reasons, Amicus respectfully
requests that this Court reverse the decision the
Fourth Circuit Court Appeals, overrule Lemon
Kurtzman, and return Establishment Clause
precedent the standard intended the Framers,
that legal coercion. Amicus respectfully requests
that the Fourth Circuit Court Appeal decision
reversed and the Memorial declared constitutional.
Respectfully submitted,
James Peterson
Meredith Liberto
Counsel Record
1925 Vince Road
JUDICIAL WATCH, INC.
Virginia Beach, 23464
425 Third Street
Washington, 20024
(202) 646-5172
jpeterson@judicialwatch.org
Counsel for Amicus Curiae
December 24, 2018
wtop.com/national/2018/11/appeals-court-holding-off-decision-on-lehigh-county-seal/
THE FRONT VIEW DISPLAYING VALOR AND THE PLAQUE
APPENDIX
forums.catholic.com/t/suit-seeks-removal-of-bladensburg-cross/357544
THE PLAQUE
www.dailysignal.com/2018/03/26/obama-judges-rule-cross-monument-must-goshowing-elections-consequences/
THE BACK VIEW DISPLAYING COURAGE
THE SIDE VIEW DISPLAYING
ENDURANCE
wtop.com/news/2012/09/atheists-want-bladensburgpeace-cross-to-be-removed/
THE SIDE VIEW DISPLAYING DEVOTION
http://thefederalist-gary.blogspot.com/2017/10/
fourth-circuit-90-year-old-cross-shaped.html
BLADENSBURG MEMORIAL, CIRCA 1920
www.washingtonpost.com/graphics/2018/local/
maryland-peace-cross/?utm_term=.296ff1e13e55
BLADENSBURG MEMORIAL CIRCA 1920
picryl.com/media/monuments-and-memorialspeace-cross-bladensburg-maryland
https://www.hmdb.org/Marker.asp?Marker=78136
UNDAUNTED BATTLE
OTHER VETERANS MEMORIAL PARK MONUMENTS
https://www.hmdb.org/marker.asp?marker=5189
WWII HONOR ROLL
10a
https://www.hmdb.org/Marker.asp?Marker=5188
VETERANS MEMORIAL
11a
www.hmdb.org/marker.asp?marker=5189
SEPTEMEBER 11TH
CAPE HENRY MEMORIAL CROSS
http://nsdac.org/work-of-the-society/
historical/markers/cape-henry-cross/
12a
FRENCH CEMETERY YORKTOWN
http://www.mikelynaugh.com/Yorktown
/pages/IMG_3282.htm
13a
CYPRESS HILLS, NEW YORK
www.nps.gov/nr/travel/national_cemeteries/
new_york/cypress_hills_national_cemetery.html
14a
15a
http://ctmonuments.net/wp-content/uploads/2011/07/Wayside-6.jpg
NEW CANAAN, CONNECTICUT
16a
https://www.legion.org/memorials/235901/argonne-cross-memorial
ARLINGTON,
17a
http://dctourguideonline.com/cross-of-sacrifice-at-arlington-national-cemetery/
ARLINGTON,
18a
http://newmexicohistoricalmarkers.blogspot.com/2014/05/fort-stantonhistorical-marker-lincoln.html
FORT STANTON, NEW MEXICO
19a
wcyb.com/news/virginia-news/marion-vfw-places-flags-and-crosses-on-courthouse-lawn
MARION,
TEMPORARY MILITARY MEMORIALS
20a
newschannel9.com/news/local/ringgold-places-over-1600-flags-and-crosses-to-honorlate-catoosa-county-veterans
CARTOOSA COUNTY,
21a
http://www.peninsuladailynews.com/news/port-townsend-display-illustratesbattle-some-veterans-face-at-home/
PORT TOWNSEND,
22a
www.dothaneagle.com/news/local/for-cottonwood-couple-crosses-are-a-labor-oflove/article_f2f40854-4263-11e7-bcdd-c77bc12ecbc6.html
COTTONWOOD,
23a
www.ktuu.com/content/news/Community-members-prepare-downtownmemorial-park-cemetery-for-Memorial-Day-425009093.html
ANCHORAGE,