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American Humanist Association v. Maryland-National Capital Park and Planning Commission

United States Court of Appeals, Fourth Circuit

March 1, 2018

AMERICAN HUMANIST ASSOCIATION; STEVEN LOWE; FRED EDWORDS; BISHOP MCNEILL Plaintiffs - Appellants
v.
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION Defendant-Appellee THE AMERICAN LEGION; THE AMERICAN LEGION DEPARTMENT OF MARYLAND; THE AMERICAN LEGION COLMAR MANOR POST 131 Intervenors/Defendants - Appellees FREEDOM FROM RELIGION FOUNDATION; CENTER FOR INQUIRY Amici Supporting Appellant THE BECKETT FUND FOR RELIGIOUS LIBERTY; JOE MANCHIN; DOUG COLLINS; VICKY HARTZLER; JODY HICE; EVAN JENKINS; JIM JORDAN; MARK MEADOWS; ALEX MOONEY; STATE OF WEST VIRGINIA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF HAWAII; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF KENTUCKY; STATE OF LOUISIANA; STATE OF MICHIGAN; STATE OF MONTANA; STATE OF NEVADA; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF RHODE ISLAND; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE OF UTAH; STATE OF VIRGINIA; STATE OF WISCONSIN Amici Supporting Appellee FOUNDATION FOR MORAL LAW Amicus Supporting Rehearing Petition

          AMENDED: March 2, 2018

          ORDER

         On a requested poll of the court on appellees' petitions for rehearing en banc, a majority of active judges voted to deny rehearing en banc. Judge Motz, Judge Duncan, Judge Keenan, Judge Wynn, Judge Diaz, Judge Floyd, Judge Thacker, and Judge Harris voted to deny rehearing en banc. Chief Judge Gregory, Judge Wilkinson, Judge Niemeyer, Judge Traxler, Judge King, and Judge Agee voted to grant rehearing en banc.

         The petitions for rehearing en banc are denied.

          WYNN, CIRCUIT JUDGE, voting to Deny the Petition to Rehear.

         In seeking rehearing of this case en banc, Petitioner Maryland-National Capital Park & Planning Commission, a state entity (the "Commission"), again asks this Court to hold that Maryland's ownership and maintenance of the Bladensburg Cross-a 40-foot tall Latin cross erected at an intersection in Prince George's County-does not have the "principal or primary effect" of advancing the Christian faith. Appellee's Pet. for Reh'g En Banc at 12. Rather, according to the Commission, this Court should conclude that the Bladensburg Cross has lost its predominantly sectarian meaning, to the extent that it ever had any such meaning, and now stands as a symbol of the soldiers who died on the field of battle in World War I.

         But the Latin cross has for centuries been widely recognized as "the pre-eminent symbol of Christianity."[1] Nothing in the First Amendment empowers the judiciary to conclude that the freestanding Latin cross has been divested of this predominately sectarian meaning.

         Our holding that the State's ongoing ownership and maintenance of the Bladensburg Cross violated the Establishment Clause recognizes that to hold otherwise 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. To give the judiciary the power to prescribe and proscribe the meaning of an unadorned, traditionally religious symbol like the Latin cross would infringe on intensely personal and sacred questions of religious meaning and belief. [2] Such governmental prescription of religious belief would serve only to "degrade religion"-one of the principal outcomes the Framers of the Religion Clauses sought to forestall. Engel v. Vitale, 370 U.S. 421, 431 (1962).

         The First Amendment provides that the government "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. Although "tension inevitably exists between the Free Exercise and the Establishment Clauses, " Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788 (1973), both Religion Clauses serve at least one common purpose: the prevention of governmental interference in matters of faith.

         The Free Exercise Clause, in particular, protects "first and foremost the right to believe and profess whatever religious doctrine one desires." Emp't Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872, 877 (1990), superseded on other grounds by statute, 42 U.S.C. §§ 2000bb-1; see also City of Boerne v. Flores, 521 U.S. 507, 550 (1997) (O'Connor, J., dissenting) ("[T]he historical record indicates that [the Framers] believed that the Constitution affirmatively protects religious free exercise and that it limits the government's ability to intrude on religious practice."). Put differently, the Free Exercise Clause endows individuals and religious institutions with the "power to decide for themselves, free from state interference, matters . . . of faith and doctrine." Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N.A., 344 U.S. 94, 116 (1952). The clause, therefore, amounts to an "unflinching pledge to allow our citizenry to explore diverse religious beliefs in accordance with the dictates of their conscience." Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984). To that end, the Free Exercise Clause prohibits the government, and the judiciary in particular, from entertaining, much less resolving, questions that turn on issues of religious doctrine, practice, and belief. See, e.g., Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC, 565 U.S. 171, 188 (2012) (holding that the Free Exercise Clause prohibits courts from resolving claims "concerning the employment relationship between a religious institution and its ministers"); Serbian E. Orthodox Diocese for U.S. and Can. v. Milivojevich, 426 U.S. 696, 720 (1976) (holding that the "First Amendment commits exclusively to the highest ecclesiastical tribunals . . . the resolution of quintessentially religious controversies").

         The Establishment Clause likewise protects against governmental interference in religious matters. As the Supreme Court has recognized, the "first and most immediate purpose [of the Establishment Clause] rested on the belief that a union of government and religion tends to destroy government and to degrade religion." Engel, 370 U.S. at 431 (emphasis added); Catholic High Sch. Ass'n of Archdiocese of N.Y. v. Culvert, 753 F.2d 1161, 1162-63 (2d Cir. 1985) ("[The Religion Clauses] must be constantly manned, the Founding Fathers believed, lest there be a union between church and state that will first degrade and eventually destroy both." (emphasis added)). "The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate." Engel, 370 U.S. at 431-32. In other words, the Establishment Clause protects "not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree . . . the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government." School of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 258 (1963) (Brennan, J., concurring).

         The Religion Clauses' animating concern with governmental intrusion on and degradation of religious belief stems from the colonists' experience and unease with the consequences of state control over religious institutions and beliefs. The Puritans fled England to escape the monarchy's prescription of tenets of belief and modes of worship. Hosanna-Tabor, 565 U.S. at 182-83. And other settlers sought to escape what they saw as "the corruptive influence of secular statism on religious purity." Brandon v. Bd. of Educ. of Guilderland Cent. Sch. Dist., 635 F.2d 971, 974 (2d Cir. 1980). As James Madison, the principal drafter of the Religion Clauses, explained, "experience" revealed "that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation." James Madison, Memorial and Remonstrance Against Religious Assessments ¶ 7 (1785), in II Writings of James Madison 187 (1901), and quoted in Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 67 (1947) [hereinafter Remonstrance].

         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. See, e.g., West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632-33 (1943) ("A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn.").

         Importantly, this is not a case in which a religious symbol or text is displayed as part of historical presentation that has a predominately secular purpose. See Van Orden v. Perry, 545 U.S. 677, 701 (2005) (Breyer, J., concurring) (surrounding context revealed Ten Commandments display conveyed primarily historical and moral meaning). Nor is it a case in which the government is displaying a religious symbol as a "historical artifact, " thus permitting each individual to imbue the symbol with her own meaning. See Am. Atheists, Inc. v. Port Auth. of N.Y. & N.J., 760 F.3d 227, 238-42 (2d Cir. 2014) (surrounding context of display in 9/11 museum of "cross-shaped artifact" that naturally appeared in wreckage of the World Trade Center demonstrated that artifact was displayed, not for a religious purpose, but to "provid[e] accurate historical insight into the various means by which people tried to cope with the devastation of the September 11 attacks"). Rather, it is a case in which the Commission and its religiously affiliated amici ask the judiciary to strip a long-recognized, "pre-eminent symbol" of a religion of its predominantly sectarian meaning. See, e.g., Am. Atheists, Inc. v. Davenport, 637 F.3d 1095, 1122-23 (10th Cir. 2010) (concluding Latin crosses that state erected to commemorate deaths of law enforcement officers, otherwise devoid of context, retained predominantly religious meaning, notwithstanding state's claim that cross had "become a secular symbol of death").

         Otherwise put, to accept the Commission's assertion that the Latin cross erected at the Bladensburg intersection does not convey a predominantly sectarian message would prohibit the ability of those who raised the symbol to prominence to continue to safeguard and define its primary meaning. Indeed, sanctioning a governmental body's attempt to imbue a traditionally religious symbol, like the Latin cross, with secular meaning poses the risk that "religion may be compromised as political figures reshape the religion's beliefs [or symbols] for their own purposes." Lee v. Weisman, 505 U.S. 577, 608 (1992) (Blackmun, J., concurring). And permitting government to serve as the arbiter of religious belief and meaning would "weaken in those who profess this Religion a pious confidence in its innate ...


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