WASHINGTON — A federal appeals court is standing by a ruling that calls for the removal or destruction of a cross-shaped, 40-foot monument on public land that has towered over a busy intersection for nearly 100 years.
In a closely divided vote, the U.S. Court of Appeals for the 4th Circuit refused to reconsider an earlier decision that found government funding for the 40-foot-tall memorial in suburban Prince George’s County, Maryland, to be an unconstitutional endorsement of religion.
The 8-6 vote drew passionate dissents from several judges who said it puts other monuments on public grounds nationwide at risk. The case could end up before the Supreme Court, which has not provided clear guidance about displays of religion on government land.
Supporters of the Peace Cross, who say it is a secular tribute to local men killed in World War I, vowed to appeal.
“We cannot allow it to be the final word,” said Hiram Sasser, deputy chief counsel for First Liberty, a religious-freedom organization representing the American Legion. “If this decision stands, other memorials — including those in nearby Arlington Cemetery — will be targeted for destruction as well.”
Adrian Gardner, general counsel for the Maryland-National Capital Park and Planning Commission, said in a statement that the state agency would “keep open our option to seek review” by the Supreme Court.
The cross was built in 1925 with money from local families and the American Legion. A plaque lists the names of 49 Prince George’s County veterans and includes the words “valor,” “endurance,” “courage” and “devotion.” The park and planning commission took control of the land in 1961 because of its location at the intersection of U.S. Route 1 and Maryland Route 450 in Bladensburg. The state agency pays for upkeep and repairs.
Writing for the majority, Judge James Wynn said that the plaque and engraved words could not overcome the historically religious meaning of the cross itself.
“Nothing in the First Amendment empowers the judiciary to conclude that the freestanding Latin cross has been divested of this predominantly sectarian meaning,” Wynn wrote in the opinion issued Thursday.
The legal case was brought by the American Humanist Association, a nonprofit that argues that the cross gives the impression that only Christians are being honored.
“This is a big win not only for separation of church and state, but for all non-Christian veterans who are excluded from an enormous Christian cross war memorial,” said the group’s senior counsel, Monica Miller, who argued the case.
The dissenting judges noted that the cross had stood unchallenged for nearly 100 years and expressed concern for the precedent set for similar monuments nationwide.
“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,” wrote Judge Harvie Wilkinson, who was joined by Chief Judge Roger Gregory and Judge Steven Agee. “I would let the cross remain and let those honored rest in peace.”
In October, a three-judge panel said the use of taxpayer funds to maintain the cross “excessively entangles the government in religion,” in violation of the First Amendment. The 2-to-1 decision sent the case back to a District Court judge who had sided with monument supporters, finding it had a “secular purpose.”
The appeals court suggested that the case could be resolved by removing the monument from public land or perhaps cutting off the arms of the cross.
Maryland Gov. Larry Hogan, R, has called the court’s ruling “an affront to all veterans” and directed the state’s attorney general to defend the monument. A spokeswoman for Attorney General Brian Frosh, D, said Friday that the office would file a brief in support of the monument if, as expected, supporters seek review from the Supreme Court.