http://www.aclu.org/religion/gen/26186leg20060717.html
ACLU Letter to the House of Representatives Regarding H.R. 5683 “A Bill to
Preserve the Mt. Soledad Veterans Memorial” (7/17/2006)
U.S. House of Representatives
Washington, D.C. 20515
RE: Oppose H.R. 5683 “A Bill to Preserve the Mt. Soledad Veterans Memorial”
Dear Representative,
The American Civil Liberties Union, a non-partisan organization with
hundreds of thousands of activists and members and 53 affiliates
nation-wide, strongly urges you to oppose H.R. 5683, a bill that describes
itself as “a bill to preserve the Mt. Soledad Veterans Memorial.” The bill
proposes to use federal funds and the powers of eminent domain to acquire a
43-foot high Latin cross currently sitting on city property in San Diego,
California. However, the bill dangerously seeks to circumvent the
Establishment Clause by using taxpayer money to support a 43-foot Latin
cross on government-owned land. Not only does H.R. 5683 raise serious
constitutional issues, but also the bill’s support of a particular
religious symbol disregards the diversity of religions in our society, and
amongst our nation’s veterans and service members. This legislation is not
simply about protecting a veteran’s memorial. No one is challenging the
existence of a veteran’s memorial or its location. Instead, we oppose the
use of taxpayer funds to acquire and display a religious monument that is
sacred to some – but not all – religious believers. H.R. 5683 would put
the government in the business of preferring, endorsing, and subsidizing
certain religious symbols.
Conversion of the land under Mt. Soledad through the powers of eminent
domain does not eliminate the constitutional issues at stake. Numerous
court decisions have found Latin crosses on government-owned land to be in
violation of the Establishment Clause. Federal and state courts across the
ideological spectrum have consistently found the maintenance of Latin
crosses on government property in violation of the fundamental principles
of religious liberty.[1] The court found the Mt. Soledad cross in Paulson
v. City of San Diego, [2] to be a sectarian symbol conveying a religious
message, and more specifically, a Christian message.[3] Similar to the
holding in Paulson, courts have found a 51-foot Latin cross in a public
park to clearly represent government endorsement of Christianity.[4]
In ACLU v. City of St. Charles,[5] Judge Richard Posner found that “[w]hen
prominently displayed on [government property] that is clearly marked as
and known to be such, the cross dramatically conveys a message of
governmental support for Christianity, whatever the intentions of those
responsible for the display may be. Such a display is not only religious
but sectarian.”[6] Certainly using this logic a 43-foot high Latin cross,
such as the one at Mt. Soledad, unconstitutionally demonstrates support for
Christianity in violation of the Establishment Clause. See Buono, 371 F. 3d
at 549.
Chief Justice Rehnquist, Justice Scalia, and Justice White joined Justice
Kennedy in noting that Latin crosses on government property violate the
Constitution. Justice Kennedy wrote that it would be an “extreme” case if
government powers were used to display permanently a Latin cross on
government property, stating:
Symbolic recognition or accommodation of religious faith may violate
the Clause in an extreme case. I doubt not, for example, that the
[Establishment] Clause forbids a city to permit the permanent erection of a
large Latin cross on the roof of city hall. This is not because government
speech about religion is per se suspect, as the majority would have it, but
because such an obtrusive year-round religious display would place the
government's weight behind an obvious effort to proselytize on behalf of a
particular religion.
County of Allegheny, 492 U.S. at 661 (1989)(Kennedy, J. dissenting)
(emphasis added).
Passage of H.R. 5683 sets a very dangerous precedent of Congressional
favoritism of a particular religious symbol. Veterans’ memorials should
honor all veterans and not favor the religious symbols of some veterans.
Although the proponents of the bill argue they are defending the religion
of American veterans, the Latin cross obviously favors one particular
religious symbol over others. This gives the explicit message that some
religious symbols are preferred while others are not worthy of mention or
support. Congress should not be in the business of deciding which
veterans’ religions should be preferred to others.
The Mt. Soledad memorial displays a 43-foot Latin cross, ignoring the
diversity of religion among service members, including the wide array of
Christian beliefs held by veterans. Even within the Christian faith, many
sects do not recognize the Latin cross as their preferred religious symbol.
Such veteran memorial displays should be erected in honor of all veterans
who served their country, not only for some veterans.
H.R. 5683 violates the principles of federalism by having Congress ignore
the express language of the California State Constitution and the decisions
of both California and Federal courts interpreting that language of the
Constitution. Both State and Federal courts sitting in California have
already found that the Latin cross on Mount Soledad violates the California
Constitution.[7] H.R. 5683 would run roughshod over principles of
federalism and comity by injecting the U.S. Congress into a case involving
the California constitution. The California Constitution provides that:
Neither the Legislature, nor any county, city and county, township,
school district, or other municipal corporation, shall ever make an
appropriation, or pay from any public fund whatever, or grant anything to
or in aid of any religious sect, church, creed, or sectarian purpose, or
help to support or sustain any school, college, university, hospital, or
other institution controlled by any religious creed, church, or sectarian
denomination whatever; nor shall any grant or donation of personal property
or real estate ever be made by the State, or any city, city and county,
town, or other municipal corporation for any religious creed, church, or
sectarian purpose whatever; provided, that nothing in this section shall
prevent the Legislature granting aid pursuant to Section 3 of Article
XVI.[8]
Proponents of this bill have been spreading the urban myth that religious
symbols on gravestones at military cemeteries will be threatened without
passage of H.R. 5683. It should be noted – in light of the wildly
inaccurate statements that have repeatedly been made – that religious
symbols on soldiers’ grave markers in military cemeteries (including
Arlington National Cemetery) are entirely constitutional. Although this
issue is distinct from the Mount Soledad issue, the supposedly “threatened”
religious markers on gravestones has become a red-herring – indeed it is an
urban myth -- that has been invoked as a reason for proposing numerous
unconstitutional legislative proposals, including H.R. 5683.
Religious symbols on personal gravestones are vastly different from
government-sponsored religious symbols or sectarian religious symbols, such
as a 43- foot Latin cross on government-owned property. Gravestones and
the symbols placed upon them are the choice of individual service members
and their families. The ACLU would in fact vigorously defend the First
Amendment rights of all Americans, including veterans and service members,
buried at National and State cemeteries to display the religious symbol of
their choosing on their gravestone.
The government is not imposing a particular religion or symbol upon the
gravestones, as individuals are able to choose which symbol, if any, to
place upon their gravestone. However, service members are unable to choose
their symbols when, as in Mt. Soledad, the government erects a 43-foot
Latin cross upon public property. Despite the claims that it is a
“welcoming sign” and that the citizens want the cross there, in a
religiously diverse society, a large Latin cross perched atop a mountain
most certainly is not viewed as welcoming by all.
We are deeply concerned about legislation like H.R. 5683 that seeks to
circumvent the Establishment Clause through the abuse of power of eminent
domain. Congress should not ignore the principles of separation of power
nor the principles of religious freedom from state-sponsored religion under
the Establishment Clause. For the above stated reasons, we urge you to
oppose H.R. 5683. Thank you for your attention to this matter.
Very truly yours,
Caroline Fredrickson
Director
Terri Schroeder
Senior Lobbyist
Endnotes
[1] See Buono v. Norton, 371 F. 3d 543 (9th Cir. 2004).
[2] 294 F.3d 1124 (9th Cir. 2002).
[3] Id. at 1132.
[4] Separation of Church and State Committee v. City of Eugene lane County,
State of Oregon, 93 F. 3d 617, 619 (9th Cir. 1996).
[5] 794 F. 2d 265 (7th Cir. 1986) cert. denied, 479 U.S. 961 (1986).
[6] Id. at 271.
[7] Paulson, supra n. 2. See also Ellis v. City of La Mesa, 990 F.2d 1518
(9th Cir. 1993); Paulson v. Abdelnour, No. GIC–849667 (Superior Ct. of
Calif. in the County of San Diego, Oct. 7, 2005), pg. 35.
[8] C.A. Const. art. 16 § 5.
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You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the US and a couple from overseas as well]
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.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
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USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
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