Today our firm filed an amicus brief urging the Supreme Court to block a Fourth Circuit decision which found that the Bladensburg (Maryland) War Memorial, which includes a 40-foot cross, violates the Establishment Clause. The Fourth Circuit opinion discusses the relief being sought by a few Maryland residents to be either razing the Cross, or defacing it by cutting off its arms, and making it into an Egyptian obelisk.
Our brief argued that the Court should take the case to revisit the test in Lemon v. Kurtzman, which has been roundly criticized since it was decided. We urged the Court to apply an interpretive test suited to the Establishment Clause’s original text. Our brief proposes the proper test that the Court should adopt, which focuses not on whether the monument uses religious symbolism, but the use of the religious symbol , which here was to honor those who gave the ultimate sacrifice, not to proselytize. As we have done in many prior briefs, we explain that the Religion Clauses establish a jurisdictional barrier to the the actions of federal government, including the federal judges.