AMERICAN HUMANIST ASSOCIATION; STEVEN LOWE; FRED EDWORDS; BISHOP MCNEILL Plaintiffs - Appellants
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
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.
petitions for rehearing en banc are denied.
CIRCUIT JUDGE, voting to Deny the Petition to Rehear.
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.
Latin cross has for centuries been widely recognized as
"the pre-eminent symbol of
Christianity." Nothing in the First Amendment empowers
the judiciary to conclude that the freestanding Latin cross
has been divested of this predominately sectarian meaning.
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.  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).
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.
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
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).
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].
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
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").
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