Voting 8-6 last week to deny en banc review of a case at the heart of the First Amendment’s “establishment of religion” clause, the U.S. 4th Circuit Court of Appeals effectively doubled-down on a three-judge panel’s earlier decision to remove a 40-foot high Christian Cross from a heavily trafficked site near the nation’s capital city.
The Court reversed the decision reached a year earlier by District Judge Deborah Chasanow and sent the case back to her court with instructions to hold a new trial. It pointedly gave no direction as to how to achieve the appeals court panel’s preferred result, but a footnote left at the end of the 29-page decision marked a path that suggests the case can easily be rendered moot and be dismissed with no further litigation.
In refusing to accommodate the Maryland-National Capital Park and Planning Commission’s request for a new hearing by the full court, the 4th Circuit removed any doubt that it is no longer the bastion of judicial conservatism it once was. Numerous articles in the recent past have noted the Court’s slide toward moderation, and several recent decisions—including the Bladensburg Peace Cross case—reveal the Court as a rival for the San Francisco-based 9th Circuit’s reputation as the nation’s most liberal.
The 4th circuit is headquartered in Richmond, Va., the once-proud capital of the Confederacy. Its rulings apply to five states: Maryland, North Carolina, South Carolina, Virginia and West Virginia.
Last week’s vote fell just two short of achieving an opposite result. But, six of the eight judges who voted against a rehearing were appointed by President Barack Obama, suggesting their determination was predisposed by Democrat-liberal leanings.
The order came without an opinion from the majority, not unusual in en banc review matters, but Judge James Wynn Jr., one of the Obama appointees, argued that the majority’s decision was justifiable. “To hold otherwise,” he wrote, “would require this Court to accept the Commission’s conclusion that the Latin cross does not have the ‘principal or primary effect’ of advancing the Christian faith.”
The underlying opinion, the one written by the three-judge panel, explained why the Bladensburg Peace Cross is a religious symbol. Its construction in 1918 as a memorial to 49 Prince George’s County soldiers who were killed in World War I doesn’t diminish its religious symbolism, the Court reasoned.
But, in the final analysis, it was the structure’s ownership—not its religious purpose—that sealed the lawsuit’s outcome. Had it been privately owned, as it was when it was built 100 years ago, there wouldn’t have been a controversy. But when it slipped into a government agency’s ownership in 1961, it became ripe for a First Amendment lawsuit.
The First Amendment’s “establishment” clause has long been interpreted to mean that no government agency can provide preferential treatment to a religious organization, lest that be taken as a signal of the government’s endorsement of a particular religion. Over decades of jurisprudence, it has also come to mean that no amount of taxpayer funds can be spent to support a religious purpose.
Three local atheists, who are members of the American Humanist Association, claimed in a 2014 lawsuit that they were offended by the monument every day they drove past its site adjacent to a heavily trafficked three-way intersection near the District of Columbia.
The American Legion, a quasi-Christian veterans organization, was granted intervenor status so it could provide legal assistance to the local park and planning commission. In 1925, a local American Legion post agreed to acquire the monument to relieve its original owners of financial difficulties. By the 1960s, the monument’s once-tranquil site at the intersection of three roads had grown into a bustling corridor that carried thousands of vehicles into and out of the nation’s capital each day. The American Legion post was persuaded to give the property to the commission “in part because of safety concerns arising from the placement of the Cross in the middle of a busy traffic median,” the appeals court recounted.
While ordering Judge Chasanow to conduct a new trial and outlining a pre-determined result, the footnote found on the last page advises that the opinion “does not presuppose any particular result (i.e., removing the arms or razing the Cross entirely), rather the parties are free to explore alternative arrangements that would not offend the Constitution.”
Judge Chasanow could order the removal of the Cross’s arms and start referring to it as an obelisk; or, perhaps, the arms could be extended and pointed upward and start calling it “the fork in the road.”
But, one suspects the footnote’s mention of “alternative arrangements” was meant as a veiled reminder that the case would disappear if rendered moot. And it could be accomplished by simply allowing the government-owned monument to be sold to a private buyer. Moreover, there is a legal precedent that favors such a strategy.
A remarkably similar lawsuit over the Mount Soledad Veterans Monument, a 43-foot tall Christian cross that is near a heavily traveled interstate highway north of San Diego, Calif., came to a whispered ending after 25 years of legal struggles. Initiated in 1989 by a Vietnam War veteran who was an atheist, the case had gone through the California and federal court systems when, in 2016, the Department of Defense secured congressional approval and consummated the property’s sale to a non-profit organization for $1.4 million.
Soon thereafter, the U.S. 9th Circuit Court of Appeals issued a one-page ruling that ordered final dismissal of the case because its core issue—the government’s unconstitutional ownership of a religious monument—had been rendered moot.