One day before Christmas and a week before his last day as Rhode Island Attorney General, Peter Kilmartin signed onto an amicus brief challenging a Fourth Circuit Court ruling that declared the Bladensburg Cross, a public monument in Maryland in the shape of a Christian Cross, an unconstitutional mixture of church and state in violation of the First Amendment.
The amicus in support of the cross is signed by 32 State Attorneys General. Notably, Kilmartin is one of only five Democratic Attorneys General who signed on. The rest are Republicans. Of the five Democratic Attorneys General who signed on, Kilmartin is the only non-Southern Democrat. (The others are from the states of Maryland, Kentucky, Missouri and Virginia.)
The Case is now before the United States Supreme Court.
Asked for a comment, Kilmartin’s Public Information Officer Amy Kempe responded:
“There are two cases involving crosses on public land before the Supreme Court. The case in which Attorney General Kilmartin signed on in an amicus involves a World War 1 Memorial dedicated to fallen soldiers which was built in the shape of a cross. The memorial is secular in nature, and the Attorney General believes it is important to preserve the history and memory of the fallen soldiers.
“By way of comparison, there is a second cross case before SCOTUS which was not dedicated to fallen servicemen, and the Attorney General did not sign on in support of that case.”
Kempe then quoted from the amicus brief:
“From our nation’s earliest days, one of the ways we have honored this charge is through monuments and memorials – public and private – designed to keep our service members’ sacrifices at the forefront of the public mind. The decision below threatens one of those monuments, declaring unconstitutional a war memorial built nearly a century ago in Bladensburg, Maryland that honors 49 soldiers who died overseas during World War I. That ‘Peace Cross’ memorial was built with private funds on then-private land, has been used exclusively for the secular purpose of honoring those local soldiers, contains secular imagery and allusions, and has since been surrounded by other, entirely secular, memorials to the fallen. Yet because the memorial was built in the shape of a cross, the court below determined that the Constitution requires its destruction or substantial alteration.”
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It is worth noting that the brief was written by West Virginia Attorney General Patrick Morrisey, who ran for the United States Senate and was “Endorsed by President Trump.” Morrisey lost his Senate race to Joseph Manchin.
The amicus that Kilmartin quotes from and the facts he cites are disputed by lawyers from the American Humanist Association (AHA), who have been litigating against the cross for many years. In their amicus brief, the AHA writes:
“Conceived as a mammoth ‘Calvary Cross’ – symbolic of the crucifixion of Jesus Christ – the cross was constructed on town property in a three-way highway median, which is now the county’s busiest intersection. When the cross was first dedicated in 1925 in a ceremony replete with Christian clergy-led prayers and the involvement of local, state, and federal officials, the keynote speaker, a state representative, proclaimed the cross to be ‘symbolic of Calvary.’ Virtually every event held at the cross has featured Christian-themed prayers.
“In 1985, the government spent $100,000 renovating the cross, followed by an elaborate ‘Rededication Ceremony,’ dedicating the cross to veterans of all wars. Despite spending an additional $17,000 on routine maintenance, the cross remains in critical condition and even poses a safety hazard. In 2008, the government set aside $100,000 to resuscitate this rapidly deteriorating Christian memorial, but officials recently indicated that it is likely beyond repair.”
I asked Steven Brown, Executive Director of the American Civil Liberties Union (ACLU) of Rhode Island, for comment. Brown responded:
“On his way out the door, Attorney General Kilmartin has done a disservice to the legacy of this state and its founder. Roger Williams‘ principle of separation of church and state remains a cornerstone of our constitutional system, and Rhode Island, of all states, should be the last one to be promoting its demise. But that is exactly what this court brief does.
“People of no faith and people of all faiths – including Jews, Muslims and others – have sacrificed themselves for our country. To purport to honor all of them with a 40-foot symbol that is at the heart of Christianity is an insensitive attempt to impose the religious views of the majority on those of the minority, precisely what the First Amendment was designed to prevent.
“Calling this huge display of a religious symbol merely part of a ‘national tradition,’ as the States’ brief does, undermines our greater national traditions of pluralism and the separation of church and state. It also needs to be noted that the Trump Administration is using this case to try to gut 40 years of Supreme Court case law and severely limit the reach of the First Amendment’s Establishment Clause. We hope that the incoming Attorney General will withdraw Rhode Island’s name from this brief and instead promote Rhode Island’s rich history of devotion to religious freedom for all.”
Incoming Attorney General Peter Neronha, who is to be sworn in tomorrow in a ceremony at the Rhode Island State House, has yet to respond to a request for comment.
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