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AG Neronha withdraws Rhode Island from church/state separation case before the Supreme Court



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.

In response to Kilmartin’s action, ten organizations[note]The groups that signed the letter to Neronha were: Rhode Island State Council of Churches; Rhode Island Board of Rabbis; American Baptist Churches of Rhode Island; New England Synod, Evangelical Lutheran Church in America; American Civil Liberties Union of Rhode Island; Humanists of Rhode Island; Masjid Al-Islam; Vedanta Society of Providence; National Council of Jewish Women, Rhode Island Action Team; and Rhode Island Conference, United Church of Christ;[/note], led by the Rhode Island State Council of Churches, urged Rhode Island’s new Attorney General, Peter Neronha, to withdraw from the brief.

They write:

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 both a degradation of a sacred symbol and an insensitive attempt to impose the religious views of the majority on the minority.

The First Amendment guarantees individuals and religious organizations the right to build a Christian-only monument and conduct Christian services to honor veterans. But that same  constitutional protection should not allow such a display on public land and supported by public dollars

Earlier this week, Neronha agreed to the groups’ request and formally withdrew Rhode Island from the brief. Neronha writes that after reviewing the case:

“I have concluded that had I been Attorney General at the time this Office was asked to join the amicus brief filed on behalf of the Petitioners, I would have declined to do so. This is not to say, however, that I would have joined an amicus brief filed in support of the opposite position. Let me explain why, given the opportunity to weigh in on either side, I would have demurred.

“Certainly, I recognize the importance under both the United States and Rhode Island Constitutions of religious freedom, including the freedom not to practice any religion at all. I further recognize the importance, particularly given Rhode Island’s unique history, of separation of church and state, and the Constitution’s Establishment Clause. It is also important to recognize that under existing Supreme Court precedent, war memorials that honor veterans and include religious symbols do not in every instance violate the Establishment Clause. Rather, these cases are complicated, and, under Supreme Court precedent, are reviewed pursuant to a legal standard that involves a careful in-depth analysis of facts highly specific to the individual case.

“The Maryland case is just such a case. Indeed, a reading of both the majority and soon review, demonstrates that both the majority and the dissenting opinions turned on a highly detailed examination and analysis of the history, use over time, size, and setting of the “Peace Cross,” in addition to several other case-specific factors.

“At bottom, this is a Maryland case, not a Rhode Island one. It involves a Maryland monument to Maryland’s honored war dead. The outcome of the case in the Supreme Court, as in the Fourth Circuit, will turn on an analysis of facts developed in a courtroom in Maryland, based on the testimony of witnesses from Maryland or, if not from Maryland, with knowledge of Maryland facts. These are not facts that can be readily placed in context from this distance. Accordingly, it is my view that this is not a matter in which the Attorney General of the State of Rhode Island should play a role. Therefore, I have determined that the State of Rhode Island should withdraw its support of the amicus submission and informed the Clerk of the Court of this decision. I have enclosed a copy of this correspondence, which was also provided to the parties in the litigation.

“We are grateful to General Neronha for his decision to withdraw from this case,” said Reverend Donnie Anderson, the executive minster of the Rhode Island State Council of Churches. “We appreciate this action and his particular rationale for that decision. Beyond his immediate concerns, many of us in the faith community are concerned about a trend in America to change our understanding of religious liberty. There are already states that provide protection for acts of prejudice in the name of religious liberty. We are thankful that Rhode Island will no longer be associated with a case that could further erode this precious freedom.”

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“Religious symbolism belongs in places of worship and not in public monuments,” said Rabbi Sarah Mack, President of the Rhode Island Board of Rabbis. “In a state built upon religious freedom, we are particularly aware of the diversity of ways to memorialize and honor those who made the ultimate sacrifice for our nation to protect this very principle. We are grateful to the Attorney General for recognizing and respecting the pivotal importance of the separation of church and state.”

In a statement, the Humanists of Rhode Island said:

“When Roger Williams founded our state, he had the foresight to write into our charter the twin concepts of freedom of conscience and church/state separation. These ideas were later fully embraced by the founders of this country and written into the United States Constitution. This is Rhode Island’s proud legacy, and for this reason the Humanists of Rhode Island, partnering with other secular and religious groups, pressed Rhode Island Attorney General Peter Neronha to withdraw support for the Bladensburg Cross in a case now before the United States Supreme Court. While the Humanists of Rhode Island fully honor and respect the veterans who have fought and died for our country, and we have veterans as members, we are also aware that our veterans held a wide variety of faiths and non-faiths, and no one religious symbol can truly represent all of them.

“We are proud to have partnered with the Rhode Island State Council of Churches; Rhode Island Board of Rabbis; American Baptist Churches of Rhode Island; New England Synod, Evangelical Lutheran Church in America; American Civil Liberties Union of Rhode Island; Masjid Al-Islam; Vedanta Society of Providence; National Council of Jewish Women, Rhode Island Action Team; and Rhode Island Conference, United Church of Christ to bring about this outcome. Secular Americans, along with Christian Americans, Jewish Americans, Muslim Americans, Hindu Americans, and many, many other Americans, stood together and defended the core American beliefs of freedom of conscience, religion and church/state separation.”

“The ACLU shares the views of the religious – and non-religious – leaders who wrote the Attorney General about the essential nature of church-state separation in our pluralistic society, and Rhode Island’s special role in it,” said ACLU of RI executive director Steven Brown. “We appreciate that the Attorney General was willing to review this important issue with an open mind and reach the conclusion that he did.”

See: AG Kilmartin sides with Trump on church/state separation case before the Supreme Court

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Steve Ahlquist is Uprise RI's co-founder and lead reporter. He has covered human rights, social justice, progressive politics and environmental news for nearly a decade.