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ADF to Supreme Court: WWI memorial cross deserves to stand

ADF files friend-of-the-court-brief asking court to honor veterans, apply Constitution correctly
cross and sunset

WASHINGTON – Alliance Defending Freedom filed a friend-of-the-court brief Thursday with the U.S. Supreme Court on behalf of retired Major General Patrick Brady, a Medal of Honor recipient and one of the most decorated soldiers in American history, plus seven veterans groups representing thousands of living veterans. The brief supports the American Legion’s efforts to protect a World War I memorial in Bladensburg, Maryland, which the American Humanist Association wishes to either uproot or destroy merely because the memorial is in the shape of a cross.

“Bladensburg’s ‘Peace Cross’ honors veterans who gave everything to serve their country, but one group’s displeasure over the monument’s shape can’t diminish their sacrifice or dismantle their memory,” said ADF Senior Counsel and Vice President of U.S. Litigation David Cortman. “The Supreme Court was right to take up this case so that it has the opportunity to affirm that the offended feelings of someone driving by does not amount to a constitutional crisis. A passive monument like the Bladensburg Cross, which celebrates our veterans and acknowledges our nation’s religious heritage, simply does not amount to an establishment of religion.”

Originally funded by private dollars and placed on private land, the memorial became a historical site in a busy, public intersection. Because it’s shaped like a cross, the American Humanist Association sued to remove it, and the Fourth Circuit found the memorial to be unconstitutional, suggesting the cross should be removed or that its arms should be chopped off. But the American Legion asked the Supreme Court to take the case and overturn that lower court decision. The Supreme Court agreed. A friend-of-the-court brief authored by ADF and K&L Gates asks the Court to ensure that “existing memorials are undisturbed and protected as public monuments to venerate the honor, valor, and sacrifice of those who have died in service to this country.” The brief further argues that “[r]emoving the Bladensburg Memorial would not further Respondents’ religious liberty. It would only show disrespect for the brave service members the cross was meant to honor.”

A key legal issue presented is the question of what legal test should determine when the government is establishing religion. ADF’s brief argues that the Court should overrule current, ahistorical, incoherent tests “and replace it with a liberty-based principle that is guided by our nation’s history. The test should protect individuals from the government forcing them to participate in or directly finance religious exercise, and from being subjected to the creation of a government establishment of religion. But the test should not result in the complete banishment of any religious language or symbolism—including language or symbolism that someone might associate with religion—from the public square.”

Several veterans groups across the country are designing new memorials to honor their fallen comrades. But, because of the confusion and unpredictability that characterizes current understanding of the Constitution’s Establishment Clause, they have no clear standard by which to predict what symbols, designs, and words people might find offensive and courts may say are unconstitutional. Firms representing the Petitioners in the lawsuit, The American Legion v. American Humanist Association, are First Liberty, Jones Day, and Hogan Lovells.

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.


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David Cortman
David A. Cortman
Senior Counsel, Vice President of U.S. Litigation
David A. Cortman serves as senior counsel and vice president of U.S. litigation with Alliance Defending Freedom.