In this most recent installment of the long-running (and long-vexing) series, “Crèches, Crosses and the Constitution,” a Fourth Circuit majority held that a 40-foot-tall Latin cross situated in the middle of a public intersection, and pictured at right, ran afoul of the First Amendment’s Establishment Clause. Erected in 1925, the cross memorialized forty-nine soldiers from Prince George’s County, Maryland, near Washington, D.C., who died in World War I. After standing for the better part of a century, it drew the ire of several area residents and the American Humanist Association, all of whom believed such a prominent display, located on public property and maintained with public dollars, unconstitutionally advanced Christianity. The district court concluded otherwise, granting summary judgment in favor of the government, and this appeal to the Fourth Circuit followed.
A 2-1 majority reversed. All three judges on the panel agreed that both the individuals and the association enjoyed standing to challenge the cross’s constitutionality—the challengers all experienced “unwelcome direct contact” with the cross—but parted ways on the constitutional question itself. The majority first wrestled with whether the Supreme Court’s test from Lemon v. Kurtzman 403 U.S. 602 (1971), or the Court’s more recent approval of a religious monument Van Orden v. Perry, 545 U.S. 677 (2005), controlled, concluding that although Van Orden too considered a “passive monument,” it did not discard Lemon’s test for analyzing religious display.
Thus, applying that test, the majority considered whether the cross (1) had a secular purpose; (2) did not have a “principal or primary effect” that advances, inhibits, or endorses religion; and (3) did not create “an excessive entanglement between government and religion.” The display, they held, had both the primary effect of advancing Christianity, and, in any event, fostered an excessive entanglement. As to the former, the majority concluded that the cross’s size, prominence, and eons-old association with Christianity overshadowed any mitigating effects from other aspects of the memorial, and that a reasonable observer familiar with the display’s history would necessarily conclude that it endorsed Christianity. As to the latter ground, the majority further concluded that using public funds to maintain the cross and the display’s exclusion of other religious tenets both led to excessive entanglement.
Chief Judge Gregory dissented, arguing that the display remained permissible under Lemon’s second and third prongs. Although recognizing the cross as a “preeminent symbol of Christianity,” he believed that a reasonable observer would understand it to comprise a component of an otherwise secular display. As to the majority’s conclusion regarding excessive entanglement, Judge Gregory disagreed that maintenance alone rose to the level of Lemon’s impermissible state surveillance and saw no evidence to suggest that the state had excluded other faith groups from the site.