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

[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.