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92-Year-Old World War I Monument Declared Unconstitutional 'Breach' of Church and State Separation

A World War I monument in the shape of a cross with the American flag in the background.

On Wednesday, the Fourth Circuit Court of Appeals declared a World War I monument in the shape of a celtic cross unconstitutional, saying it "breached" the separation of church and state. The Bladensburg World War I Veterans Memorial has stood since 1925, honoring the 49 Bladensburg-area men who gave their lives during World War I. The American Humanist Association sued to have it removed in 2014.

"The decision ignored the fact that the monument was modeled off of World War I grave markers, thousands of which are in the shape of a cross like this one," Ken Klukowski, senior counsel at First Liberty Institute, told PJ Media. First Liberty, along with Jones Day, represents the American Legion, which first erected the monument.

Despite the historical meaning and resonance of the cross-shaped marker, which harkens back to World War I gravestones, the American Humanist Association argued that the cross violated the First Amendment's Establishment Clause, which bars Congress from making any law "respecting an establishment of religion."

Klukowski argued that this is a misinterpretation of the Establishment Clause. "Current Supreme Court precedent holds that the Establishment Clause is violated only by government actions that officially adopt a religion as that concept was understood by the Constitution's framers, or when the government coerces someone to engage in a religious activity," he said.

"A passive display like this was historically accepted, and coerces no one," the lawyer explained. "Moreover, in the Supreme Court case most similar to this case, the Court allowed a longstanding Ten Commandments display on public land to remain in place."

In Van Orden v. Perry (2005), the Supreme Court ruled that a Ten Commandments display at the Texas State Capitol in Austin did not violate the Establishment Clause.

Klukowski argued that the Fourth Circuit's decision "jeopardizes many longstanding memorials and monuments across the nation, including even Arlington National Cemetery."

Perhaps because it is so important, eight Republican and Democratic members of Congress filed a joint amicus brief in support of the memorial. Sen. Joe Manchin (D-W.Va.) joined Representatives Doug Collins (R-Ga.), Vicki Hartzler (R-Mo.), Jody Hice (R-Ga.), Evan Jenkins (R-W.Va.), Jim Jordan (R-Ohio), Mark Meadows (R-N.C.), and Alex Mooney (R-W.Va.).

Even so, Judge Stephanie D. Thacker, who wrote the majority opinion for the panel, asked what a "reasonable objective observer" would think about the memorial. In a vacuum, she argued the observer would perceive the cross as an enormous endorsement of the Christian faith.

Both Thacker and Judge James A. Wynn Jr., who joined her in ruling against the monument, were appointed by President Barack Obama.

"It's a cross much more clearly and obviously than a memorial, David Niose, a lawyer for the humanist association, told The Wall Street Journal.