American Humanist Association v. Maryland-National Capital Park and Planning Commission, 030118 FED4, 15-2597

Docket Nº:15-2597
Opinion Judge:WYNN, Circuit Judge, voting to Deny the Petition to Rehear.
Party Name: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 FOUNDATI...
Judge Panel:Judge Wynn filed a concurring opinion, and Chief Judge Gregory, Judge Wilkinson, and Judge Niemeyer filed dissenting opinions. Entered at the direction of Judge Thacker. GREGORY, Chief Judge, dissenting from the denial of rehearing en banc, in which Judge Wilkinson and Judge Agee join. WILKINSON,...
Case Date:March 01, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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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

No. 15-2597

United States Court of Appeals, Fourth Circuit

March 1, 2018

         8:14-cv-00550-DKC

          ORDER

          WYNN, Circuit Judge, voting to Deny the Petition to Rehear.

         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.

          Judge Wynn filed a concurring opinion, and Chief Judge Gregory, Judge Wilkinson, and Judge Niemeyer filed dissenting opinions.

          Entered at the direction of Judge Thacker.

         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...

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