Saving Monuments from the ACLU

Schools, parks and courthouses aren’t the only places hit by separation of church and state lawsuits. Several veterans groups recently argued that a case coming before the Supreme Court this fall could help determine the fate of veterans’ memorials around the country.

They met on May 21 to protest what Mark Seavey of The American Legion called the American Civil Liberty Union’s (ACLU) “fight to secularize every facet of American life.”

“The issue for us goes far beyond the fate of one simple cross in the desert, as mentioned, and despite statements by the ACLU, our interest extends to the fate of the crosses as gravestones in various federal cemeteries,” he argued, claiming that the ACLU’s “logic,” as stated on their website, was that “gravestones and the symbols placed upon them are the choice of individual service members and their families.”

“And even if that statement is taken at face value, what of the hundreds of cross-shaped gravestones in Normandy marked as the graves unknown soldiers?… Using ACLU logic could that be the next target?” Seavey asked. “And what of the large white cross which was just mentioned which overlooks the World War I section of Arlington cemetery which commemorates no single soldier lost in the war but rather is emblematic of all those who rest in that hallowed site?”

The ACLU publication referenced, titled “Myths and Realities: Gravestones and Markers are not in Danger” maintains that “Religious symbols on personal gravestones are constitutional, unlike permanent, government-sponsored religious displays on government-owned property.”

But what about religion-evoking memorials erected on federal land by private individuals? The Veterans of Foreign Wars (VFW), The American Legion, the Military Order of the Purple Heart (MOPH), and American Ex-Prisoners of War (AEW) filed an amicus brief to the Supreme Court in the defense of maintaining the Mojave Desert Cross, erected in 1934 by returning World War I veterans.

“In 1934 a number of World War I veterans were told—they came back with the Spanish flu, as well as with post-traumatic stress, what was called ‘shell shock’ back then,” said Kelley Shackelford, Esq., Chief Counsel at the Liberty Legal Institute (LLI), which organized the press conference. “The doctors advised them that a dry climate like the desert would be an excellent place for them to heal,” so the veterans went out there to prospect and later “decided to put up a memorial,” he said.

In 2002 the District Court ruled that the presence of the cross-shaped memorial violated the establishment clause despite Congressional maneuvers to transfer ownership of the land to the local VFW chapter.

“So a deal was worked out where Henry [Sandoz] offered five acres of his own land, private land within the federal preserve to get the one acre and the memorial given back to the VFW,” argues Shackelford, continuing, “The ACLU went into court and said you can’t allow this to happen, you can’t allow the memorial to be given back to the veterans who put it up in the first place, the memorial has to be torn down instead and, unbelievably, the court granted that injunction [and] would not allow the transfer.” This decision was later upheld by both the Ninth Circuit and District Court.

In an opposition brief sent to the Supreme Court which argues against accepting the case, ACLU lawyers state that the reasons the courts ruled that the land transfer would perpetuate the establishment clause violations included that

a.) when Congress designated the site as a national memorial it provided funding
for a plaque and required the national park service’s (NPS) “continuing ‘supervision, management and control’ over the cross and land.”
b.) Congress’ legal intervention also stipulated that the site would return to U.S. control if the property were neglected.

Jim Sims, National Senior Vice Commander of MOPH cast the issue as one of “honoring veterans” rather than constitutionality, with the other speakers concurring that the Supreme Court decision, due this fall term, would have widespread effects throughout the nation.

Seavey said that it was his experience “that most of the veterans don’t know that this is going on and when they find out they’re skeptical… that you’re telling the truth and then further on they just can’t believe that this would happen.”

“If a lone cross in the middle of 1.6 million acres of desert that was put up in 1934 to honor the war dead, if that has to be torn down, then there are literally thousands and thousands and thousands of memorials across the country, in every community and every state that that precedent will then apply to and that will create incredible chaos around the country…,” argued Shackleford. He maintained that the cross in its historical context was a “universal symbol to reflect sacrifice,” during WWI, not a Christian symbol. “In fact, World War I memorials—if you would look—all over the world were crosses.”

But some believe that the use of a cross to memorialize unnamed persons does presuppose that those honored were Christian themselves.

In their opposition brief to the Supreme Court the ACLU defined the “latin cross” as the “preeminent symbol of christianity” and argued “it is exclusively a Christian symbol, not a symbol of another religion.”

Frank Buono, the plaintiff in Salazar v. Buono, is a retired Catholic NPS employee who now lives in Oregon. Due to this separation, Shackelford argued that the Supreme Court might simply reject the plaintiff’s standing in this case. But, he maintained, this would fail to resolve the underlying legal questions surrounding the military’s use of religious symbols.

Since the new Supreme Court justice nominated by President Barack Obama will help rule on this case, one media representative asked if the speakers would like to see more “diversity” on the Court by selecting a veteran. “The issue is not gender, it’s not race, it’s not whether the potential justice went to an ivy league school,” responded Sims for the group. He said that “the issue is whether they are there to determine the law or whether they are [there] to become an activist.”

Judge Sonia Sotomayer, who was nominated to the Supreme Court this week, is seen by many conservatives as just that.

Bethany Stotts is a staff writer at Accuracy in Academia.