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Hill joins amicus brief defending cross-shaped WWI memorial

July 31, 2018

Indiana Attorney General Curtis Hill has signed on to a 28-state amicus brief urging the United States Supreme Court to overturn a circuit court decision that would require the destruction or significant alteration of a World War I monument, which was found to be a violation of the Establishment Clause.

The amici states, led by West Virginia Attorney General Patrick Morrisey, are urging the high court to review the 6th Circuit Court of Appeals’ decision in The American Legion, et al. v. American Humanist Association, et al., 17-1717 and Maryland-National Capital Park and Planning Commission v. American Humanist Association, et al., 18-18. The case concerns the 93-year-old World War I memorial in Bladensburg, Maryland, which the local American Legion and a group of mothers erected to honor 49 local men who died overseas.

The memorial is in the shape of a large cross, which led the 6th Circuit to find that it violates the First Amendment Establishment Clause. But the amici states maintained the cross-shaped monument was erected as a memorial, not a site for religious devotion.

The states also pointed to dozens of examples of war memorials containing religious imagery, including the base of Indianapolis’ World War I obelisk, which contains “mammoth stone based-relief pictures of Moses carrying the Ten Commandments, and a woman and girl praying before a Celtic cross.” Accepting the 6th Circuit’s decision, the states argue, would put such monuments at risk.

“The World War I memorial at the heart of this case is not unique,” the amicus brief says. “Like countless memorials built across the States and throughout our history, the monument at Bladensburg uses religious imagery as part of its vital civic purpose of remember and honoring those who died in our nation’s service.

“The decision below calls for its destruction,” the brief continues. “This Court should grant review to make clear that these memorials are fully consistent with the First Amendment, and the best of our historical tradition.”

The amici also urged the high court to review the Maryland case to provide guidance through the muddied waters of Establishment Clause jurisprudence. There is currently tension between the tests for determining constitutionality under the clause laid out in Lemon v. Kurtzman, 403 U.S. 602 91971) and Van Orden v. Perry, 545 U.S. 677 (2005), they said.

“This case is an egregious example of the law consequences from this uncertain state of the law,” the states wrote in their brief, filed Friday.

In a statement issued Tuesday, Hill said the Supreme Court’s ruling will have nationwide implications, including on cemeteries such as Arlington National Cemetery in Arlington, Virginia.

“The First Amendment was never intended to eradicate religious expressed and symbolism from government property,” Hill said. “Quite the contrary, one expects public memorials and monuments honoring fallen heroes to include words and imagery representing the role of religious faith in our country’s rich tradition.

“That’s quite different from coercing citizens to participate in or pay homage to any particular faith,” he said.

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