American Humanist Association et al v. Maryland-National Capital Park and Planning Commission

Filing 102

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 11/30/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
AMERICAN HUMANIST ASSOCIATION,
et al.
v.

:
:

Civil Action No. DKC 14-0550

:
MARYLAND-NATIONAL CAPITAL PARK
AND PLANNING COMMISSION

:
:

MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

Establishment Clause case is a motion for summary judgment filed
by Plaintiffs American Humanist Association, Steven Lowe, Fred
Edwords, and Bishop McNeill.

(ECF No. 80).1

Also pending are

cross-motions for summary judgment filed by Defendant MarylandNational Capital Park and Planning Commission (the “Commission”)
(ECF

No.

86)

and

Intervenor-Defendants

American

Legion,

The

American Legion Department of Maryland, and The American Legion
Colmar Manor Post 131. (the “American Legion”) (ECF No. 83).2

1

Plaintiffs’ initial motion for summary judgment (ECF
78) contained a separate statement of undisputed facts that
outside the length limitations found in Local Rule 105.3,
amended by court order.
Plaintiffs’ corrected motion
summary judgment is the operative motion. (ECF No. 80).
2

No.
was
as
for

Because the American Legion filed its motion for summary
judgment only to assist the Commission in its defense, the two
motions will be considered together.
See Hewett v. City of
King, 29 F.Supp.3d 584, 598 (M.D.N.C. 2014).
Accordingly, the

Finally, three motions for leave to file memoranda as
curie are pending.

(ECF Nos. 94; 95; 96).

amici

The relevant issues

have been fully briefed, and the court now rules, no hearing
being deemed necessary.

Local Rule 105.6.

For the following

reasons, Plaintiffs’ motion for summary judgment will be denied
and Defendants’ motions for summary judgment will be granted.
The motions for leave to file as amici curie will be denied.
I.

Background
Factual Background3

A.

Standing at the intersection of Maryland Route 450 and U.S.
Route

1

in

Bladensburg,

Maryland,

is

a

memorial

monument

consisting, in part, of a large concrete Latin cross that is
approximately forty feet tall.
denoted

the

memorial

as

(ECF No. 83-6).

“The

Bladensburg

Plaintiffs

Cross”

in

the

complaint, but acknowledge that it is also referred to as the
“Peace Cross.”

Other references in the record use the name

“Memorial

Cross.”

Memorial”

or

some

Defendants
variation.

use

In

the

this

term

opinion,

“Bladensburg
except

when

referring to the name used in an historical reference, the term
“Monument”

will

be

used.

The

Monument

currently owned by the Commission.

and

the

median

are

(ECF Nos. 83-44; 83-45).

Commission and the American Legion will be collectively referred
to as the “Defendants.”
3

Unless
undisputed.

otherwise

noted,
2

the

following

facts

are

The symbol of the American Legion is displayed in the middle of
both faces of the cross.
rectangular

base,

and

(ECF No. 83-2).

the

West

face

of

The cross sits on a
the

base

contains

a

plaque listing the names of forty-nine men from Prince George’s
County who died in World War I.

The plaque also reads:

“This

Memorial Cross Dedicated to the heroes of Prince George’s County
Maryland who lost their lives in the Great War for the liberty
of the world,” and includes a quotation from President Woodrow
Wilson.
the

Four words are inscribed directly above the base, on

bottom

of

the

cross

itself,

endurance; courage; devotion.”

one

on

each

face:

“valor;

An American flag flies on one

side of the cross.
1.

Creation of the Monument

The initial effort to construct and finance the Monument
began in late 1918 and early 1919, led by a group of private
citizens

organized

as

the

Prince

George’s

Committee (the “Memorial Committee”).

County

Memorial

(ECF Nos. 83-4, at 2; 83-

10, at 4; 83-14; 83-25, at 2; 83-36, at 3).

The fundraising

effort

time,

garnered

reports
National

significant

highlighting
Defense

the

Highway.

publicity

link

between

(ECF

No.

at

the

the

Monument

83-31).

including
and

These

organizers circulated fundraising pledge sheets that read:
We, the citizens of Maryland, trusting
in God, the supreme ruler of the universe,
pledge faith in our brothers who gave their
3

the

early

all in the World War to make the world safe
for democracy.
Their mortal bodies have
turned to dust, but their spirit lives to
guide us through life in the way of
godliness, justice, and liberty.
With our motto, “one god, one country
and one flag,” we contribute to this
memorial cross commemorating the memory of
those who have not died in vain.
(ECF No. 80-32, at 3).
fundraising

flyer

The Memorial Committee circulated a

announcing

the

upcoming

creation

of

the

Monument and the National Defense Highway (now Maryland Route
450), which runs from Bladensburg to Annapolis.
at 2).

(ECF No. 83-25,

The flyer noted that the “Memorial Cross will stand in a

strategic position at the point where the Washington-Baltimore
Boulevard joins the Defense Highway leading from Washington to
Annapolis.”

(Id. at 3).

The flyer also explained that:

those who come to the Nation’s Capital to
view the wonders of its architecture and the
sacred places where their laws are made and
administered
may,
before
this
Cross,
rededicate[] themselves to the principles of
their fathers and renew the fires of
patriotism and loyalty to the nation which
prompted these young men to rally to the
defense of the right. And here the friends
and loved ones of those who were in the
great conflict will pass daily over a
highway memorializing their boys who made
the supreme sacrifice.
(Id.).
A groundbreaking ceremony was held for the Monument and the
National Defense Highway on September 28, 1919.
at 4).

(ECF No. 83-4,

At the time of the groundbreaking, the land was owned by
4

the Town of Bladensburg (the “Town”).
83-37;

90,

at

participated

17;

in

92,

the

at

10).

ceremony,

(ECF Nos. 83-6, at 10;

Families
and

of

Josephus

Secretary of the Navy, was the primary speaker.
at

5;

83-10,

at

15).

Secretary

Daniels

the

veterans

Daniels,

then-

(ECF Nos. 83-9,

addressed

both

the

Monument and the National Defense Highway: “A concrete highway .
. . that will never fail in rain or sun, that every day in the
year will present an unalterable face to every duty expected of
it, as did the men in whose honor it was named; and a cross that
will

stand

for

defended.”
George’s

time

(Id.).

County

and

eternity,

According

Historical

to

Society

like

the

principles

records

from

Library,

“The

the

they

Prince

Marine

Band

provided music, several speeches were given by local officials
and the exercises were concluded by the singing of The Star
Spangled Banner.”

(ECF No. 83-10, at 15 (internal quotation

marks omitted)).
The Memorial Committee continued its fundraising efforts,
but ultimately failed to raise enough money and abandoned their
efforts in 1922.

(Id. at 16).

Because construction on the

Monument had begun but was unfinished, the local post of the
American

Legion

(the

“Snyder-Farmer

responsibility for completing the Monument.
26-27;

83-36,

at

4-5).

The

parties

5

Post”)

assumed

(ECF Nos. 83-12, at

dispute

if

the

Town

officially transferred the land to the Snyder-Farmer Post.4
ECF Nos. 83-1, at 30; 90, at 17).

(See

In 1922, the Town passed a

resolution that:
authorize[d] the Snyder-Farmer Post of the
American Legion to complete said Cross and
its surroundings in such manner as the Post
may deem advisable; and, to this end, the
Town Commissioners of Bladensburg, Maryland
do hereby assign and grant to the said
Snyder-Farmer Post #3, American Legion, that
parcel of ground upon which the cross now
stands and that part necessary to complete
the park around said cross, to the perpetual
care of Snyder-Farmer Post #3 as long as it
is in existence, and should the said Post go
out of existence the plot to revert to the
Town of Bladensburg, together with the cross
and its surroundings.
(ECF No. 83-37).

Counsel for the Snyder-Farmer Post contended

that this resolution was recorded in the land records of Prince
George’s County on April 30, 1935.

(See ECF No. 83-45, at 2).

Subsequent historical accounts appear to note either that the
Town did in fact officially convey the land to the American
Legion post (see, e.g., ECF Nos. 80-24, at 2; 80-33, at 4; 83-4,
at 3; 83-10, at 16) or express uncertainty about the ownership
history of the land (see ECF No. 92-2, at 2).
The

Snyder-Farmer

Post

succeeded

required to complete the Monument.
4

in

raising

the

(ECF No. 83-4, at 4).

funds
The

The legal ownership of the land from 1922 until 1956 is
disputed, but this fact is not material to the outcome of this
case.
The record indicates that the Snyder-Farmer Post had
control over the land from 1922 until 1956, and a government
entity controlled the land at all other times.
6

Snyder-Farmer Post held a dedication ceremony for the Monument
on July 12, 1925.

(ECF Nos. 83-4, at 4; 83-39).

According to a

contemporaneous news account, Representative Stephen Gambrill of
Maryland’s Fifth Congressional District delivered the keynote
address, stating, in part:
Where we of the past generation have failed
to prevent war, perhaps you young men of the
American Legion or the mothers who gave
their sons to the conflict may succeed.
And
You men of Prince George’s county fought for
the sacred right of all to live in peace and
security and by the token of this cross,
symbolic of Calvary, let us keep fresh the
memory of our boys who died for a righteous
cause.
(ECF No. 83-39).

The Army Music School band provided music for

the dedication, local officials and figures delivered remarks,
and local clergy offered an invocation and benediction.

(ECF

Nos. 80-28).
2.
Subsequent Control and Use of the Monument and
Veterans Memorial Park
In 1935, due to increased traffic on the roads surrounding
the

Monument,

directed”

the

the

Maryland

State

Roads

state

legislature

Commission

“to

“authorized
investigate

and
the

ownership and possessory rights” of the area surrounding the
Monument and to acquire the land “by purchase or condemnation.”
(ECF No. 83-40, at 2).

Plaintiffs contend that the tract of

7

land

in

question

was

adjacent

to

the

Monument,

but

did

not

include the Monument itself – they maintain that the Monument
has always been owned by a government entity.
19).

(ECF No. 90, at

Defendants assert that the Snyder-Farmer Post owned the

Monument and the land on which it sat.
32; 92, at 10).

(ECF Nos. 83-1, at 31-

The record is not entirely clear as to exactly

what land was transferred and when.

Ultimately, the State Roads

Commission obtained title to the tract mentioned in the state
statute and conveyed it to the Commission by deed in 1960.
No. 83-44).
Snyder-Farmer

(ECF

On March 1, 1961, to resolve any ambiguities, the
Post

“transfer[ed]

and

assign[ed]

to

[the

Commission] all its right, title and interest in and to the
Peace Cross, also originally known as the Memorial Cross, and
the tract upon which it is located and surrounded and bounded by
the curbings and boundary lines of the highways of the State
Roads commission adjoining the said Cross parcel.” (ECF No. 8345,

at

4).

The

Commission

“assume[d]

the

obligation

of

maintaining, repairing and otherwise caring for” the Monument,
but the Snyder-Farmer Post reserved “the right and the privilege
to

hold

memorial

services

to

departed

veterans

and

other

ceremonies upon the parcel on appropriate dates and occasions.”
(Id. at 5).

The Commission continues to own the Monument and

the land on which it sits.

(See ECF No. 83-13, at 6).

8

The Monument now sits amidst additional monuments as part
of Veterans Memorial Park.

(ECF No. 83-8, at 2).

The National

Park Service placed among the memorials a “Star-Spangled Banner
National Historic Trail Marker” highlighting the Monument and
the other monuments in the park.

(ECF No. 86-11).

In 1944,

local American Legion posts dedicated a World War II memorial
across the street from the Monument honoring the men and women
of Prince George’s County who died in that war.
at 7).
Pearl

(ECF No. 83-9,

Nearby, a plaque and tree commemorate the lives lost at
Harbor.

Following

a

joint

public-private

effort,

a

memorial to veterans of Korea and Vietnam was dedicated on July
4, 1983.
by

a

(Id. at 8).

granite

ledge

In 2006, an arcing stone walkway bordered
and

a

garden

was

remember lives lost on September 11th.
at 7-8).

built

in

the

park

to

(ECF Nos. 83-1, at 5; 86,

In 2010, the Town and the Anacostia Trails Heritage

Area, Inc. convened a task force to explore ideas for monuments
and events to commemorate the 200th anniversary of the War of
1812 and the Battle of Bladensburg.

(ECF No. 86-25, at 4).

Currently, there is a War of 1812 memorial just north of the
Monument, and the Commission is in the process of installing two
thirty-eight-foot-tall

statues

of

soldiers

representing

the

British Army and the defending American forces of the Battle of
Bladensburg.

(Id.).

Finally, Veterans Memorial Park includes a

9

flag display of the American flag, the Maryland flag, and the
Prince George’s County flag.
Numerous
Monument

and

events

and

Veterans

(ECF No. 83-2, at 14).
gatherings

Memorial

have

Park,

the

been

held

vast

commemoration of Memorial Day or Veterans Day.

at

the

majority

in

An invocation

and benediction are often included. (ECF Nos. 80-41; 83-1, at
35-36; 83-9, at 6; 83-11, at 9-11).

Local posts of the American

Legion have hosted many of the Memorial Day and Veterans Day
programs at the Monument and in the surrounding park, which
often feature local government officials and representatives of
other veterans’ organizations.

(ECF No. 83-11, at 9-11).

The

Town, through organizations such as the Bladensburg Patriotic
Committee and the Bladensburg Promotional Committee, also has
held events in conjunction with Memorial Day, Veterans Day, the
Fourth of July, and in remembrance of September 11th
Monument or in the surrounding park.
83-11, at 12).
include

a

at the

(ECF Nos. 80-7, at 7-8;

The events generally follow the same format and

presentation

of

colors,

the

national

anthem,

an

invocation, a keynote speaker (typically a veteran, military,
local

government,

or

American

Legion

official),

songs

or

readings, the laying of a wreath or flowers, a benediction, and
a

reception.

American

Legion

government

(See,

e.g.,

posts,

entities

have

the

ECF

Nos.

Town,

also

the

hosted
10

80-51;

83-68).

Local

Commission,

and

other

rededications

and

other

patriotic ceremonies at the Monument.
50; 83-53).
that

no

(See, e.g., ECF Nos. 80-

Although Defendants and the American Legion contend

religious

services

have

been

held

at

the

Monument,

Plaintiffs point to a Washington Post column indicating that
there were at least three Sunday religious services held at the
Monument in 1931.5

(ECF No. 80-41, at 6).

While the Monument was built with private donations, the
Commission has devoted resources over the years to maintain and
illuminate it.

Bladensburg Rotarians funded the installation of

lights to illuminate the cross in 1965.
Commission

funds

routine

maintenance

(ECF No. 80-47).
and

lighting

of

The
the

Monument (ECF No. 80-11, at 13) and has spent at least $117,000
on the Monument, including $100,000 on significant renovations
in 1985.

(ECF Nos. 80-1, at 24; 80-50, at 8).

In 2008, the

Commission budgeted an additional $100,000 for further repairs

5

Plaintiffs provide evidence supporting their assertion
that some religious services were held at the Monument. On the
other hand, their allegations regarding the involvement of the
Ku Klux Klan with the Monument are not supported by the record.
Plaintiffs point to news reports regarding Klan events in Prince
George’s County held in the 1920s, but only one of these
reports, a community calendar entry in The Washington Post,
mentions the Monument, noting that “Robed klansmen will direct
persons desiring to attend from the peace cross at Bladensburg
to the fiery cross at Lanham.”
(ECF No. 80-45, at 5).
The
rally was not held at the Monument and there is no indication
that the Monument was an official meeting point.
Plaintiffs’
suggestion of some connection is simply wrong. (See ECF No. 92,
at 22 n.7).
11

to the Monument that has not yet been entirely spent.

(ECF No.

80-11, at 8).6
B.

Procedural History

Plaintiffs commenced this action under 42 U.S.C. § 1983 on
February 25, 2014, contending that the ownership, maintenance,
and

prominent

display

of

the

Monument

on

public

property

violates the Establishment Clause of the First Amendment of the
United

States

Fourteenth

Constitution,

Amendment.

They

as

applied

seek

a

to

Maryland

declaratory

by

judgment,

injunction, nominal damages, attorneys’ fees, and costs.
No. 1).7

the
an

(ECF

Defendant Commission filed an answer on April 28, 2014.

(ECF No. 12).

Intervenor-Defendants American Legion, et al.

filed a motion to intervene (ECF No. 14), which was granted on
September

18,

Plaintiffs

2014

(ECF

Nos.

the

pending

(ECF

judgment.

filed

No.

80).

46;

47).

corrected
On

June

On

May

motion

10,

5,

for

2015,

2015,

summary

Intervenor-

Defendants filed the pending cross-motion for summary judgment
and response in opposition to Plaintiffs’ motion.

(ECF No. 83).

One day later, the Commission filed the pending cross-motion for
summary

judgment

and

response

in

opposition

to

Plaintiffs’

6

After this case was filed, the National Park Service
placed the Monument on the National Register of Historic Places.
(ECF No. 97-2).
7

The specific injunctive relief sought in the Motion for
Summary
Judgment
includes
removal
of
the
Monument,
its
demolition, or removal of the arms. (ECF No. 80, at 2).
12

motion.

(ECF

No.

86).

Plaintiffs

filed

a

response

in

opposition to Defendants’ motions (ECF No. 90), and DefendantIntervenors replied (ECF No. 92).
On April 25, 2014, prospective amici curiae moved for leave
to appear jointly as amicus curiae in support of Defendants and
to

file

an

amicus

curiae

memorandum.

(ECF

No.

11).

By

memorandum opinion and order issued on September 18, 2014, the
undersigned granted in part the motion to appear jointly as
amicus curiae and for leave to file an amicus curiae memorandum.
(ECF Nos. 46; 47).

The proposed amici curiae were permitted to

participate as amicus curiae.

The court noted, however, because

no

yet

dispositive

motions

had

been

filed,

the

proposed

memorandum submitted by the amici curiae would not be considered
at that time.

On September 15, 2015, the same prospective amici

curiae filed an unopposed second motion for leave to file a
memorandum
memorandum.

in

support

of

(ECF No. 94).

Defendants

together

with

their

On October 1, 2015, the Center for

Inquiry filed a motion for leave to appear as amicus curiae in
support of Plaintiffs and to file an amicus curiae memorandum.
(ECF Nos. 95).
but

the

Center

Defendants.

Intervenor-Defendants do not oppose this motion,
for

Inquiry

did

not

receive

a

response

from

Also on October 1, 2015, the Council on American-

Islamic Relations (“CAIR”) filed a motion for leave to appear as
amicus curiae in support of Plaintiffs and to file an amicus
13

curiae memorandum.

(ECF No. 96).

CAIR attempted to obtain

consent from Defendants and Intervenor-Defendants, but had not
received a response by the time of filing.
II.

Standard of Review
A court may enter summary judgment only if there is no

genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(a);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v.
Johnson, 532 F.3d 291, 297 (4th Cir. 2008).

Summary judgment is

inappropriate if any material factual issue “may reasonably be
resolved in favor of either party.”

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash.
Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]

pleadings,’

but

rather

must

‘set

forth

specific

showing that there is a genuine issue for trial.’”

facts

Bouchat v.

Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof

.

.

.

will

not

suffice

to

prevent

“A mere scintilla of
summary

Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).

judgment.”
“If the

evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
249–50 (citations omitted).

Liberty Lobby, 477 U.S. at

At the same time, the court must
14

construe

the

facts

that

are

presented

in

favorable to the party opposing the motion.

the

light

most

Scott v. Harris,

550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
“When

cross-motions

for

summary

judgment

are

before

a

court, the court examines each motion separately, employing the
familiar standard under Rule 56 of the Federal Rules of Civil
Procedure.”

Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d

351, 354 (4th Cir. 2011).

The court must deny both motions if it

finds there is a genuine dispute of material fact, “[b]ut if
there is no genuine issue and one or the other party is entitled
to prevail as a matter of law, the court will render judgment.”
10A Charles A. Wright, et al., Federal Practice & Procedure §
2720 (3d ed. 1998).
III. Analysis
A.

Establishment Clause Jurisprudence and Framework

The First Amendment provides that “Congress shall make no
law respecting an establishment of religion,” U.S. Const. amend.
I, and the Supreme Court of the United States has applied this
principle against the states and their subdivisions through the
Fourteenth Amendment.

See Moss v. Spartanburg Cnty. Sch. Dist.

Seven, 683 F.3d 599, 608 (4th Cir. 2012) (citing Everson v. Bd.
of Educ., 330 U.S. 1, 15 (1947)).
simplicity

of

the

clause,

“[t]here

Despite the straightforward
is

‘no

single

mechanical

formula that can accurately draw the constitutional line’” in
15

every Establishment Clause case.

Myers v. Loudoun Cnty. Pub.

Schs., 418 F.3d 395, 402 (4th Cir. 2005) (quoting Van Orden v.
Perry,

545

U.S.

677,

699

(2005)

(Breyer,

J.,

concurring)).

Indeed, Establishment Clause jurisprudence is a law professor’s
dream, and a trial judge’s nightmare.
Clarence

Thomas,

shambles.”

“Establishment

Clause

In the words of Justice
jurisprudence

[is]

in

Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 132

S.Ct. 12, 13 (2011) (Thomas, J., dissenting from the denial of
certiorari.)
Courts, including the United States Court of Appeals for
the Fourth Circuit, often use the three-part test articulated by
the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), to
assess alleged violations of the Establishment Clause.

See,

e.g., Am. Atheists, Inc. v. Port Auth., 760 F.3d 227, 238 (2d
Cir. 2014); Moss, 683 F.3d at 608; Glassman v. Arlington Cnty.,
628 F.3d 140, 146 (4th Cir. 2010) (determining Lemon to be the
“appropriate test”); Am. Atheists, Inc. v. Davenport, 637 F.3d
1095, 1117 (10th Cir. 2010) (noting that “the touchstone for
Establishment Clause analysis remains the tripartite test set
out in Lemon”) (citations and internal quotation marks omitted);
Hewett

v.

City

of

King,

29

F.Supp.3d

584,

611

(M.D.N.C.

2014)(deciding the case “[u]nder the Lemon framework”).

Most

recently, the Fourth Circuit has articulated the Lemon test as
requiring

that,

to

pass

constitutional
16

muster,

“government

conduct (1) must be driven in part by a secular purpose; (2)
must have a primary effect that neither advances nor inhibits
religion;
State.”

and

(3)

must

not

excessively

entangle

church

and

Moss, 683 F.3d at 608 (emphases in original) (citing

Lemon, 403 U.S. at 612-13).
In 2005, a plurality of the Supreme Court recognized that,
although commonly used, the Lemon test has not been uniformly
applied to Establishment Clause cases.

Van Orden, 545 U.S. at

684-86 (plurality opinion). In determining the constitutionality
of a display of the Ten Commandments outside the Texas State
Capitol, the plurality noted that the Lemon test “is not useful
in

dealing

Instead
nature

with

the
of

Justice

[such]

plurality’s

the

monument

Breyer,

in

a

passive

monument[s].”

“analysis
and

by

[was]

our

controlling

Id.

driven

Nation’s

opinion

both

at
by

history.”

concurring

in

686.
the
Id.
the

judgment, see Trunk v. City of San Diego, 629 F.3d 1099, 1107
(9th Cir. 2011) (recognizing that “Justice Breyer’s concurrence
provides

the

controlling

opinion”);

Myers,

418

F.3d

at

402

(treating Justice Breyer’s opinion as controlling), noted that
in “borderline cases” there is “no test-related substitute for
the exercise of legal judgment.”

Van Orden, 545 U.S. at 700

(Breyer,

judgment

J.,

concurring).

Such

“must

reflect

and

remain faithful to the underlying purposes of the [Establishment

17

and Free Exercise] Clauses, and it must take account of context
and consequences measured in light of those purposes.”

Id.

Not surprisingly, the parties disagree whether Lemon or Van
Orden controls this case.
at 16).

(ECF Nos. 83-1, at 38; 90, at 36; 92

Courts deciding Establishment Clause cases post-Van

Orden also disagree.

The Fourth Circuit, immediately after Van

Orden, applied Justice Breyer’s “legal judgment” test from Van
Orden to the exclusion of the Lemon test, in upholding a statute
providing

for

daily,

voluntary

recitation

Allegiance in Virginia’s public schools.
402.

of

the

Pledge

of

Myers, 418 F.3d at

Myers is, however, the only Fourth Circuit case to cite to

Van Orden.

In recent years, the Fourth Circuit has continued to

apply the Lemon test with no mention of Van Orden.

Moss, 683

F.3d at 608; Glassman, 628 F.3d at 146; see also Weinbaum v.
City of Las Cruces, 541 F.3d 1017, 1030 n.14 (10th Cir. 2008)
(“Supreme Court Justices have harshly criticized Lemon.

. . .

Nevertheless, the Lemon test clings to life because the Supreme
Court, in the series of splintered Establishment Clause cases
since Lemon has never explicitly overruled the case.”).

Other

courts have applied some hybrid form of the two tests.
Salazar

v.

Buono,

559

U.S.

Trunk, 629 F.3d at 1107.

700

inquire

into

the

(plurality

opinion);

Ultimately, here, it is not necessary

to resolve the legal conundrum.
to

(2010)

See

nature,

Both tests “require the [c]ourt
context,
18

and

history”

of

the

Monument and lead to the same result.
at

611

(citing

Trunk,

629

F.3d

at

See Hewett, 29 F.Supp.3d
1107).

Even

if

Justice

Breyer’s opinion in Van Orden controls, the Lemon test remains a
“useful guidepost[]” for the court’s analysis.

Van Orden, 545

U.S. at 700 (Breyer, J., concurring).
B.

Lemon Test

As noted above, “[t]o pass muster under the Establishment
Clause, government conduct must be driven in part by a secular
purpose; (2) must have a primary effect that neither advances
nor inhibits religion; and (3) must not excessively entangle
church and State.”

Moss, 683 F.3d at 608 (emphases in original)

(citing Lemon, 403 U.S. at 612-13).

Additionally, as part of

Lemon’s second prong, the Fourth Circuit examines “whether the
governmental use of an object with religious meaning . . . ha[s]
the effect of ‘endorsing’ religion.”

Lambeth v. Bd. of Comm’rs

of Davidson Cnty., 407 F.3d 266, 269 (4th Cir. 2005) (citing
Cnty. of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573,
593-94 (1989)).
1.

Secular Purpose

The secular purpose prong of the Lemon test “presents a
‘fairly low hurdle, which may be cleared by finding a plausible
secular purpose.’”

Glassman, 628 F.3d at 146 (quoting Ehlers-

Renzi v. Connelly Sch. of the Holy Child, Inc., 224 F.3d 283,
288 (4th

Cir. 2000)).

The government’s purpose need not be
19

“exclusively secular,” Jenkins v. Kurtinitis, No. ELH-14-1346,
2015 WL 1285355, at *28 (D.Md. Mar. 20, 2015) (citing Brown v.
Gilmore, 258 F.3d 265, 276 (4th Cir. 2001)), as long as the
government action is not “entirely motivated by a purpose to
advance religion.”

Hewett, 29 F.Supp.3d at 611 (citing Lambeth,

407 F.3d at 270).

“Under applicable Supreme Court precedent, a

‘legitimate

secular

purpose’

supporting

a

challenged

governmental action will suffice to satisfy the Lemon test’s
first prong . . . unless the alleged secular purpose is in fact
pretextual.”
Sch.

Dist.

Lambeth, 407 F.3d at 270 (citing Santa Fe Ind.
V.

Doe,

530

U.S.

290,

Donnelly, 465 U.S. 668, 681 (1984)).
attribute

unconstitutional

particularly
purpose.”

where

[it]

308-09

Lynch

v.

Courts should “not lightly

motives

can

(2000);

discern

to
a

the

government,

plausible

secular

Hewett, 29 F.Supp.3d at 612 (quoting Davenport, 637

F.3d at 1118) (internal quotation marks omitted).
Plaintiffs

argue

religious purpose.

that

displaying

Plaintiffs

Monument

has

a

First, they argue that a Latin cross, which

the Monument is, is “patently religious.”
30).

the

also

argue

that

“underscores its religious purpose.”

the

(ECF No. 80-1, at 29history

of

(Id. at 30-32).

the

cross

They also

contend that the use of a religious symbol to achieve a secular
goal is impermissible when a non-religious means will suffice.
Defendants

assert

that

the

Commission’s
20

sole

purpose

for

acquiring the land in the 1960s was not religious because it
acquired

the

land

for

“highway

expansion,

traffic

safety,

protection of the Legion’s residual property interests, [and]
historic

preservation”

reasons.

(ECF

No.

83-1,

at

46).

Defendants also argue that, even if the intent of the Monument’s
builders is relevant, the record shows that their intent was
“commemorative rather than religious.”

(Id. at 47-52).

Although the Latin cross is undeniably a religious symbol,
“[t]he fact that the monument conveys some religious meaning
does not cast doubt on the [government’s] valid secular purposes
for its display.”

Hewett, 29 F.Supp.3d at 612 (citing City of

Elkhart v. Brooks, 532 U.S. 1058, 1062 (2001)); see also Buono,
559

U.S.

at

715

(plurality

opinion)

(“Although

certainly

a

Christian symbol, the cross was not emplaced on Sunrise Rock to
promote a Christian message.”); Mellen v. Bunting, 327 F.3d 355,
374

(4th

Cir.

2003)

school-sponsored

(assuming

prayer

“is

a

secular

plainly

purpose

religious

even
in

though

nature”).

Other courts have recognized that displaying a cross to honor
fallen soldiers is a legitimately secular purpose, and does not
always promote a religious message.

See Buono, 559 U.S. at 715

(plurality opinion) (noting that “those who erected the cross
intended

simply

to

honor

our

Nation’s

fallen

soldiers”);

Davenport, 637 F.3d at 1118 (determining that the intent to use
crosses for fallen state trooper memorials was not religious,
21

partly

because

it

was

inspired

by

crosses

in

military

cemeteries).
The focus of the first Lemon prong is “on the government’s
purpose, not that of a private actor.”
1118.

The

alleged

government

Davenport, 637 F. 3d at

conduct

challenged

in

the

complaint is the “ownership, maintenance and prominent display
on public property” of the Monument.
Commission’s

actions

are

clearly

legitimate secular purpose.

(ECF No. 1 ¶ 55).
driven

by

a

The

plausible,

The Commission owns the Monument

and surrounding land because it sits in the median of a busy
highway

interchange.

ownership

of

the

The

median

government
would

determined

“create

a

that

serious

private

menace

to

traffic” in light of increased use of the surrounding roads.
(ECF

No.

83-40,

at

2).

It

is

the

government’s

secular

responsibility to maintain the land on which the Monument sits
just as it would any other highway median.

In addition, the

Commission’s maintenance and display of the Monument independent
of

traffic

maintaining

concerns
and

is

also

displaying

driven

a

by

a

“historically

secular

purpose,

significant

war

memorial” that has honored fallen soldiers for almost a century.
See Trunk, 629 F.3d at 1108 (holding that the government, in
acquiring a memorial in the shape of a cross, articulated a
plausible,

legitimate

secular

purpose

historically significant war memorial”).
22

of

“preserv[ing]

a

Nothing in the record

indicates that the Commission’s maintenance and display of the
Monument

is

driven

by

a

religious

purpose

whatsoever.

The

evidence of the Commission’s secular purpose is uncontroverted.
Even the purpose of the private citizens who were behind
the Monument’s construction 90 years ago was a predominantly
secular one.
existence

of

Plaintiffs refer to remarks made throughout the
the

Monument

religious nature.
Notably,

a

contained

expressly

in

an

attempt

to

illustrate

its

(ECF Nos. 80-1, at 30-32; 90, at 52-55).

fundraising

pledge

religious

sheet

language

that
(ECF

was
No.

circulated

80-32,

at

3

(“We, the citizens of Maryland, trusting in God, the supreme
ruler of the universe, pledge faith in our brothers.”)); the
Monument

was

sometimes

described

in

religious

terms

such

as

“Cross of Calvary” and “Sacrifice Cross” (ECF No. 80-26); and
many events at the Monument contain some religious components
(ECF Nos. 80-51; 83-68).

Even if these statements or events

carry some religious meaning, they do not show an “entirely
religious purpose” for the Monument, and, in fact, there is
overwhelming evidence in the record showing that the predominant
purpose of the Monument was for secular commemoration.
Monument’s

groundbreaking

was

a

predominantly

secular

The
affair

that also included the groundbreaking of the National Defense
Highway.

(ECF No. 83-25, at 2-3).

Additionally, although the

construction of a cross can be for a religious purpose, in the
23

period

immediately

following

World

War

I,

it

could

also

be

motivated by “the sea of crosses” marking graves of American
servicemen

who

Davenport,

died

637

overseas.

F.3d

at

(ECF

1118.

No.
The

83-5,

at

14);

Monument’s

cf.

secular

commemorative purpose is reinforced by the plaque, the American
Legion’s seal, and the words “valor,” “endurance,” “courage,”
and “devotion” written on it.

None of these features contains

any

In

religious

demonstrates

reference.

that

the

short,

construction

and

the

record

maintenance

amply
of

the

Monument “was not an attempt to set the imprimatur of the state
on a particular creed.

Rather, those who erected the cross

intended simply to honor our Nation’s fallen soldiers.”

Buono,

559 U.S. at 715 (plurality opinion).
The ownership, maintenance, and display of the Monument by
the Commission thus easily satisfies the purpose prong of the
Lemon test.
2.

Primary Effect

Lemon’s second prong requires the court to determine if the
challenged display’s “principal or primary effect is to advance
or inhibit religion.”

Lambeth, 407 F.3d at 270.

The primary

question is “whether an informed, reasonable observer would view
the display as an endorsement of religion.”
reasonable

observer

is

aware

of

history of the symbol at issue.”
24

the

Id. at 272.

purpose,

“[T]he

context,

and

Hewett, 29 F.Supp.3d at 613

(emphasis

in

original)(quoting

Davenport,

637

F.3d

at

1119).

“The inquiry is not ‘whether there is any person who could find
an endorsement of religion, whether some people may be offended
by the display, or whether some reasonable person might think
[the government] endorses religion.’”8

Id. at 613 (emphases in

original) (quoting Capitol Square Review and Advisory Bd. v.
Pinette, 515 U.S. 753, 780 (1995) (O’Connor, J., concurring in
part and concurring in the judgment)).

The Ninth Circuit noted

that in determining the effect of symbols such as the Monument,
courts “must consider fine-grained, factually specific features
of the Memorial, including the meaning or meanings of the Latin
cross[,]

.

.

.

the

Memorial’s

history,

its

secularizing

elements, its physical setting, and the way the Memorial is
used.”

Trunk, 629 F.3d at 1110.

“Secular elements, coupled

with the history and physical setting of a monument or display,
can

—

but

do

not

always

—

transform

sectarian

symbols

that

otherwise would convey a message of government endorsement of a
particular

religion.”

Id.

at

1117.

The

Ninth

Circuit’s

framework provides a helpful approach to assessing the effect of
the

Monument,

which

is

similar,

but

not

identical,

to

the

memorial at issue in Trunk.

8

It is for this reason that the parties’ inclusion of
individuals’ reactions to the Monument is not particularly
relevant or helpful for the reasonable person analysis.
25

Plaintiffs

argue

that

the

Monument

endorses

religion

because, “as a Christian cross, it is inherently religious.”
(ECF No. 90, at 56).

Additionally, Plaintiffs assert that the

prominence of the Monument on the traffic island and relative
isolation from the other memorials in Veterans Memorial Park
enhance its endorsement of religion.

Finally, Plaintiffs argue

that the history and use of the Monument “deepens its religious
message.”

(ECF No. 80-1, at 43).

Defendants counter that the

Monument contains numerous secular commemorative aspects that
would indicate to the reasonable observer that its purpose is
commemorative rather than religious.

(ECF No. 83-1, at 55).

Defendants also contend that the location of the Monument within
Veterans

Memorial

(Id. at 56-57).

Park

further

supports

its

secular

effect.

Defendants also argue that the historical use

of the Monument for veterans’ commemorative events strengthens
its secular effect.
Plaintiffs cite multiple cases addressing a cross memorial
on public land to support the proposition that “courts have been
virtually unanimous in concluding that the government’s display
of a cross on public property unconstitutionally endorses and
advances Christianity.”
ignores

the

key

(ECF No. 80-1, at 37).

factual

distinctions

Plaintiffs cite and the Monument.
history

and

setting

of

the

between

the

cases

In Trunk, for example, the

cross
26

This assertion

memorial

were

overtly

religious.

The cross in Trunk sat from 1913 until the 1990s as

an unadorned cross without “any physical indication that it was
a memorial.”

Trunk, 629 F.3d at 1102.

Rather than hosting

annual commemorative events on Memorial Day and Veterans Day,
the Trunk cross hosted religious Easter services and only a “few
scattered [veterans] memorial services before the 1990s.”

Id.

Throughout its history, the Trunk cross “functioned as a holy
object,

symbol

observance.”

of

Christianity,

Id. at 1120.

and

a

place

of

religious

The Ninth Circuit suggested that the

Trunk cross was repurposed primarily as a war memorial partly in
response to litigation.

Id. at 1102.

The cross memorials at

issue in other cases were similarly imbued with long-standing
and

explicit

religious

histories.

See,

e.g.,

Separation

of

Church and State Comm. v. City of Eugene, 93 F.3d 617 (9th Cir.
1996) (cross was initially erected for religious purposes but
later

deemed

to

be

a

“memorial

of

veterans

to

all

wars”);

Gonzales v. North Tp. Of Lake Cnty., Ind., 4 F.3d 1412 (7th Cir.
1993) (lone crucifix with no secular effect other than “landmark
status”); Am. Civil Liberties Union of Ga. v. Rabun Cnty., 698
F.2d 1098 (11th Cir. 1983) (cross was dedicated on Easter and
only secular purpose was tourism).

Conversely, the Monument

contains secular elements on its face (the plaque; the American
Legion

Seal;

“devotion”),

the
has

words

functioned

“valor,”
expressly
27

“endurance,”
and

overtly

“courage,”
as

a

war

memorial for its entire history, and sits amidst other secular
memorials

in

Veterans

Memorial

Park.

Although

the

record

indicates that there were three isolated religious services held
at the Monument, the predominant and nearly exclusive use of the
Monument

has

been

for

annual

Memorial Day and Veterans Day.
18).9

In

light

of

this

commemorative

events

held

on

(See ECF Nos. 80-51; 83-60, at

history

and

context,

of

which

a

reasonable observer would be aware, the Monument “evokes far
more than religion.
foreign

fields

It evokes thousands of small crosses in

marking

the

graves

of

Americans

who

fell

in

battles, battles whose tragedies are compounded if the fallen
are forgotten.”

Buono, 559 U.S. at 721 (plurality opinion).

The evocation of foreign graves is particularly relevant here
because, unlike crosses challenged in other cases, the Monument
explicitly memorializes forty-nine servicemen who died in Europe
during World War I, and the “cross developed into a central
symbol of the American overseas cemetery” during and following
World War I.

(See ECF Nos. 83-5, at 16-17; 83-21).

Controlling

Fourth

Circuit

precedent

also

supports

Defendants’ assertion that the Monument does not have the effect
9

Plaintiffs refer to invocations and benedictions at these
events as “prayers.”
Such activities at public ceremonies,
outside of the public school context, generally do not violate
the Establishment Clause. Town of Greece, N.Y. v. Galloway, 134
S.Ct. 1811 (2014); Newdow v. Roberts, 603 F.3d 1002, 1019-21
(D.C.Cir. 2010) (Kavanaugh, J., concurring in the judgment),
cert. denied, 131 S.Ct. 2441 (2011).
28

of endorsing religion.

The Fourth Circuit has addressed other

passive displays of alleged religious significance in Lambeth
and Smith v. Cnty. of Albemarle, Va., 895 F.2d 953 (4th Cir.
1990).

In Lambeth, the Fourth Circuit held that the inscription

of the motto “In God We Trust” on the county government center
did not violate the Establishment Clause because a reasonable
observer would not “fairly understand the purpose of the message
‘in its particular physical setting’ to impermissibly advance or
endorse religion.”

Lambeth, 407 F.3d at 272 (quoting Cnty. Of

Allegheny, 492 U.S. at 598-600).

In Smith, the Fourth Circuit

held that a crèche scene on the front lawn of the county office
building did violate the Establishment Clause because it “was
not associated with any secular symbols or artifacts” other than
a small disclaimer that the display was not sponsored by the
government, but rather by the Charlottesville Jaycees.”
895 F.2d at 958.
symbols

of

Smith,

Here, the Monument is surrounded by secular

commemoration

throughout

Veterans

Memorial

Park.

(ECF No. 83-3).

The cross itself is adorned with prominent

secular symbols.

(ECF No. 83-2).

In addition, rather than

being placed prominently in front of a governmental building,
the Monument is on a highway median as part of a larger park
that has become the “focus of the County’s remembrance of its
veterans and war dead.”

(ECF No. 83-8, at 2).

Within the

context of its long history and the setting of Veterans Memorial
29

Park,

a

reasonable

observer

would

not

view

the

Monument

as

having the effect of impermissibly endorsing religion.
3.

Excessive Entanglement

Lemon’s third prong requires courts to assess whether “the
challenged

display

has

created

an

between government and religion.”
The

Fourth

Circuit

has

noted

‘excessive

entanglement’

Lambeth, 407 F.3d at 272-73.

that

“[t]he

kind

of

excessive

entanglement of government and religion precluded by Lemon is
characterized by ‘comprehensive, discriminating, and continuing
state surveillance’ of religious exercise.”
Lemon, 403 U.S. at 619).

Id. at 273 (quoting

Considering the inscription of “In God

We Trust” in the county government center, the Fourth Circuit
held that it was not excessive entanglement because the display
did “not require pervasive monitoring or other maintenance by
public

authorities.”

Id.

Here,

Plaintiffs

argue

that

the

Commission’s “expenditure of funds to maintain and light” the
Monument excessively entangles government and religion.10
No. 80-1, at 53).

(ECF

However, “entanglement between church and

state becomes constitutionally excessive only when it has the
effect

of

advancing

or

inhibiting

10

religion.”

Hewett,

29

Plaintiffs also argue that the existence of the cross
creates “religion-based political division” in violation of
Lemon’s third prong. (ECF No. 80-1, at 52). The Fourth Circuit
has indicated, however, that this “political divisiveness
rubric” is limited to assessing government funding of religious
schools, and “is thus inapplicable to the circumstances of this
case.” Lambeth, 407 F.3d at 273.
30

F.Supp.3d
omitted).

at

618

(citations

and

internal

quotation

marks

Accordingly, courts often view Lemon’s third prong

“as an aspect of the second.”

Id.

Here, for reasons discussed

in

the

Commission’s

the

preceding

section,

display

and

maintenance of the Monument is not an endorsement of religion.
The

Monument

and

Veterans

Memorial

Park

are

secular

memorials that host numerous commemorative events.

war

The Monument

is located on a median of a busy highway interchange.

The fact

that the Commission has spent money on maintenance and upkeep of
the

Monument

and

surrounding

park

does

not

represent

unconstitutional entanglement because the Monument itself is not
a

governmental

endorsement

of

religion.

The

provision

of

maintenance and repairs for the Monument and the median does not
constitute “continued and repeated government involvement with
religion.”
as

Lambeth, 407 F.3d at 273 (emphasis added).

discussed

Commission

in

relation

undertakes

to

Lemon’s

maintenance

of

purpose
the

Rather,

prong,

Monument

the
and

surrounding land for traffic safety and commemorative purposes.
In short, the Commission’s maintenance of a war memorial on a
highway median does not implicate any of the evils against which
Lemon’s third prong protects.
C.

Van Orden

Despite continued judicial use of the Lemon test to assess
the constitutionality of such displays, a 2005 plurality of the
31

Supreme Court determined that the Lemon test “is not useful in
dealing with [such] passive monument[s].”
at 686 (plurality opinion).11
“legal

judgment”

test

Van Orden, 545 U.S.

The Fourth Circuit applied the

from

Justice

Breyer’s

Van

Orden

concurrence in holding that reciting the Pledge of Allegiance in
public school did not violate the Establishment Clause.
418 F.3d at 402.
and

Van

Orden

Here,

for

The Ninth Circuit applied a hybrid of Lemon

in

unconstitutional.

Myers,

determining

that

the

cross

in

Trunk

was

Trunk, 629 F.3d at 1107.
many

of

the

same

reasons

discussed

in

the

application of the Lemon test, the Monument does not violate the
Establishment Clause under Van Orden’s legal judgment test.

As

in Lemon, it is essential to consider the context and history of
the display to determine its constitutionality.
545 U.S. at 701 (Breyer, J., concurring).

See Van Orden,

The Monument was

constructed and financed by the American Legion and a private
group of citizens whose purpose was to remember and honor Prince
George’s County’s fallen soldiers.

See Van Orden, 545 U.S. at

701 (Breyer, J., concurring) (noting the secular purpose of the
display’s founders).

The American Legion’s seal is “displayed

11

Justice Breyer noted that Van Orden was most applicable
in “borderline cases” because applying Lemon would be difficult.
Van Orden, 545 U.S. at 700 (Breyer, J. concurring). The facts,
history, and context of the Monument do not present a
particularly difficult “borderline” Lemon analysis.
A brief
discussion of Van Orden is warranted, however, due to the
uncertain status of Establishment Clause jurisprudence.
32

on

the

[Monument],

prominently

acknowledg[ing]

that

the

[American Legion] donated the display, a factor which, though
not sufficient, thereby further distances” the Commission from
any

potential

religious

aspect

of

the

Monument.

Id.

Furthermore, the Monument is located in Veterans Memorial Park
and is surrounded by other war memorials and secular monuments.
(ECF No. 83-3); see Van Orden, 545 U.S. at 702 (Breyer, J.,
concurring) (“The physical setting of the monument, moreover,
suggests little or nothing of the sacred.”).

Much like the Ten

Commandments display in Van Orden, the location of the Monument
“does

not

readily

lend

religious activity.”
concurring).

itself

to

meditation

or

any

other

Van Orden, 545 U.S. at 702 (Breyer, J.,

Rather, the location among the other monuments of

Veterans Memorial Park underscores its secular and commemorative
nature.

In addition, the Monument has gone unchallenged for

decades.

See id. at 702-03 (discussing how the fact that the

monument existed for 40 years before a legal challenge shows
that “few individuals . . . [were] likely to have understood the
monument as amounting, in any significantly detrimental way, to
a government effort” to promote or endorse religion).
the

Monument

commemorate

has

veterans

entire history.
83-11,

at

been

9-11;

used

on

almost

secular

exclusively

patriotic

as

Finally,
a

holidays

site
for

to
its

(ECF Nos. 80-41; 83-1, at 35-36; 83-9, at 6;
83-60,

at

18).
33

As

the

Ninth

Circuit

acknowledged

in

Trunk,

“[t]he

Ten

Commandments

monuments

at

issue in [Van Orden] passed muster in part because they were not
used as religious objects — they simply adorned the grounds of
their respective government buildings in the company of other
monuments.”

Trunk, 629 F.3d at 1120.

Conversely, the cross in

Trunk had a long history of hosting religious Easter services
and had “no physical indication of any secular purpose” for much
of its history, “during which it served primarily as a site of
religious observance.”

Id. at 1121.

For the foregoing reasons, the Monument satisfies both the
Lemon test and the “legal judgment” test from Van Orden.
D.

Motions for Leave to File Amici Curie Memoranda

Also

pending

are

three

memorandum as amicus curiae.

motions

for

leave

to

file

a

One motion was filed in support of

Defendants on September 15, 2015 by the same eleven individuals
and the Veterans of Foreign Wars of the United States who filed
in

2014,

and

the

motion

contains

a

memorandum

that

is

“essentially identical to the original memorandum” previously
filed.
support

(ECF No. 94).
of

Plaintiffs

Responses and CAIR.

On October 1, 2015, two motions in
were

filed

by

the

Center

for

Inquiry

(ECF Nos. 95; 96).

Memoranda are not

attached to these two motions for leave.

As the undersigned

discussed in a prior memorandum opinion:

34

There is no Federal Rule of Civil
Procedure that applies to motions for leave
to appear as amicus curiae in a federal
district court.
District courts therefore
have discretion whether to grant or deny
such leave and often look for guidance to
Rule 29 of the Federal Rules of Appellate
Procedure, which applies to amicus briefs at
the federal appeals level.
See, e.g., Jin
v. Ministry of State Sec., 557 F.Supp.2d
131, 136 (D.D.C. 2008); Bryant v. Better
Bus. Bureau of Greater
Md., Inc., 923
F.Supp.2d 720, 728 (D.Md. 1996); Washington
Gas Light Co. v. Prince George’s County
Council, Civ. No. DCK-08-0967, 2012 WL
832756, at *3 (D.Md. Mar. 9, 2012). Rule 29
indicates that amici should state “the
reason why an amicus brief is desirable and
why the matters asserted are relevant to the
disposition of the case.”
Fed.R.App.P.
29(b)(2).
As noted by Judge Davis in
Bryant, “[t]he aid of amici curiae has been
allowed at the trial level where they
provide helpful analysis of the law, they
have a special interest in the subject
matter of the suit, or existing counsel is
in need of assistance.”
Bryant, 923
F.Supp.2d at 728 (citing Waste Mgmt. of Pa.,
Inc. v. City of New York, 162 F.R.D. 34, 36
(M.D.Pa. 1995)).
(ECF No. 46, at 5-6).

At this point, the issues have been

comprehensively and fully briefed by all parties.

Although the

prospective amici have demonstrated a special interest in the
outcome of the suit, there are no indications that the proposed
memoranda

would

provide

helpful

legal

analysis

thorough job done by the parties’ counsel.

beyond

the

Accordingly, the

motions filed by prospective amici curiae will be denied and the
court will not consider any documents filed by movants.

35

IV.

Conclusion
For the foregoing reasons, the motion for summary judgment

filed by Plaintiffs American Humanist Association, et al. will
be denied.

The motions for summary judgment filed by Defendant

Maryland-National

Capital

Park

and

Planning

Commission

and

Intervenor-Defendants American Legion, et al. will be granted.
The motions for leave to file memoranda of amici curiae will be
denied.

An appropriate declaration will be entered.

A separate

order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

36