Attorney General Brian Frosh isn’t quite ready to help fight for the state’s right to spend taxpayer money maintaining a 40-foot-tall cross in Prince George’s County.
In a letter sent to Gov. Larry Hogan yesterday, Frosh wrote that he hadn’t yet decided if he will submit an amicus brief on behalf of the state. Nearly 40 other amicus briefs have been submitted in the case, he said.
“We will continue to monitor the Court’s schedule and the issues addressed by other amici” — other amicus briefs, that is — “to determine how our participation might be useful,” he wrote.
The attorney general’s non-decision irritated the governor, who has asked Frosh to weigh in on the ruling. A panel of three judges from a federal appeals court ruled in October that the state’s maintenance of the Bladensburg monument with taxpayer dollars violates the First Amendment, which mandates separation between church and state.
The judge panel reached its decision by concluding the monument is a 40-foot “core symbol of Christianity” made of concrete, “prominently displayed in the center of one of the busiest intersections in Prince George’s County” — and it’s maintained with government funds.
Hogan responded critically, calling the ruling “an unacceptable overreach” and, in his subsequent appeal to Frosh, “an affront to all veterans.” He defended the cross for one of its intended purposes: A war memorial dedicated to 41 Prince George’s County residents who lost their lives fighting in World War I.
The governor’s leap into a public cultural spat was a rare break from his avoidance of such conversations. His approach to the so-called culture wars of American politics has in part helped him maintain high approval ratings as a Republican governor in a blue state.
Hogan responded with annoyance to Frosh yesterday, according to a letter provided by his office.
“I expected as the State’s lawyer you would have already filed an amicus brief in support of the petition,” he wrote, referring to his appeal for a rehearing in the case. “It is fundamentally inconsistent with your constitutional and ethical duties to the State to wait until the day of a deadline to suggest that you do not intend to perform as instructed. Your failure in this instance is a dereliction of these duties and a disservice to all Marylanders.”
Frosh didn’t only decline to weigh in, of course. In his letter informing the governor of his non-decision to file a petition just yet, he also prodded Hogan for not providing advice or commenting on any of his pending federal lawsuits against President Donald Trump and his Cabinet. Frosh and other attorneys general have sued the Trump administration over environmental, education, immigration and health care policy changes.
“All of these actions by the Trump administration, as well as many others brought to your attention by this office, are illegal,” Frosh wrote. “Yet you have not responded to any of my letters seeking your comment or input. Nor have you lifted your voice in any meaningful way to protect our constituents from President Trump’s reckless, lawless actions.”
Hogan spokeswoman Amelia Chasse said in an email Thursday afternoon that Frosh’s “suggestion that the governor hasn’t weighed in when he disagrees with the Trump administration just doesn’t hold water. The governor has and will continue to speak out against actions he believes will hurt Marylanders, whether at the federal or state level.”
She also reiterated the Hogan administration’s stance that the attorney general shouldn’t have the power to sue the federal government in the first place, saying, “The legislature in their infinite wisdom saw fit to remove the governor’s historical authority over this process.”
The deadline Hogan referred to in his rebuke letter was likely the court’s final day of accepting petitions to rehear the case before a full set of judges, rather than just a three-judge panel. Even if the appeals court declines to rehear the case, Frosh could still in theory submit an amicus brief for an appeal to the Supreme Court.
Hogan is also able to file an amicus brief as governor, and doesn’t need the attorney general’s office to do so.
The American Humanist Association filed the initial legal challenge to the state’s maintenance of the cross in 2014. The group, which is devoted to preserving the divide between church and state, sued the Maryland-National Capital Park and Planning Commission. If the court declines to rehear the case, and if it doesn’t make it to the Supreme Court, the monument could be torn down.
This story has been updated.
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