Friday, March 02, 2018

4th Circuit Denies En Banc Review On Bladensburg Cross

The U.S. 4th Circuit Court of Appeals, by a vote of 8-6, has denied an en banc rehearing on the constitutionality of the 40-foot high Bladensburg Cross that has stood for over 90 years at an intersection in Prince Georges County, Maryland. Last October a panel of the 4th Circuit, in a 2-1 decision, held the Latin Cross, created as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) Yesterday in American Humanist Association v. Maryland- National Capital Park Planning Commission, (4th Cir., March 1, 2018), the full court's denial of review was accompanied by 4 separate opinions-- one a concurring opinion and 3 dissenting opinions.

Judge Wynn's concurring opinion said in part:
To allow this Court to circumscribe the Bladensburg Cross’s meaning and power, as the Commission and its amici request, would empower this Court to diminish the Latin cross’s many years of accrued religious symbolism, and thereby amount to the state degradation of religion that the Framers feared and sought to proscribe. Indeed, were this Court to accept that the Latin cross’s predominantly sectarian meaning could be overcome by a plaque, a small secular symbol, and four engraved words, as the Commission maintains, we would necessarily grant the government—and the judiciary, in particular—broad latitude to define and shape religious belief and meaning. Surely, the Constitution does not contemplate endowing the government with such extraordinary power to determine and prescribe individual citizens’ religious beliefs and religious communities’ joint understandings, appreciations, and teachings.
Judge Wilkinson's dissent, joined by Chief Judge Gregory and Judge Agee, said in part:
The dead cannot speak for themselves. But may the living hear their silence. We should take care not to traverse too casually the line that separates us from our ancestors and that will soon enough separate us from our descendants. The present has many good ways of imprinting its values and sensibilities upon society. But to roil needlessly the dead with the controversies of the living does not pay their deeds or their time respect.
This memorial and this cross have stood for almost one full century. Life and change flow by the small park in the form of impatient cars and trucks. That is disturbance enough. Veterans Memorial Park may not be Arlington National Cemetery, but it is the next thing to it. I would let the cross remain and let those honored rest in peace.
Washington Post, reporting on the decision, says that the case will be appealed to the Supreme Court.