1 VERIFIED COMPLAINT William Burgess (D.C. Bar No. 473101) E: [email protected]American Humanist Association 1777 T Street, N.W. Washington, D.C. 20009 T: (202) 238-9088 F: (202) 238-9003 David J.P. Kaloyanides SBN 160368 E: [email protected]15338 Central Ave. Chino, CA 91710 T: (213) 623-8120 F: (213) 402-6292 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION AMERICAN HUMANIST ASSOCIATION, JOHN LARSEN and DIANA HANSEN, Plaintiffs, vs. CITY OF LAKE ELSINORE, BY ITS MAYOR ROBERT MAGEE, MAYOR PRO TEM NATASHA JOHNSON, AND CITY COUNCILMEMBERS DARYL HICKMAN, STEVE MANOS AND BRIAN TISDALE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: VERIFIED COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES
This is the complaint filed in American Humanist Association et al. v. City of Lake Elsinore, California, challenging the city's construction of a war memorial featuring an image of a soldier kneeling before a cross as a violation of the Establishment Clause.
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. . .” Hickman clarified: “I just mean where the cross is at.”
46. Melendez then stated, “I am going to make a substitute motion that we
move forward today with the exception of, which it pains me to say this, of
removing the cross, only because the city attorney is saying that’s going to open us
up to litigation, is that correct?”
47. The city attorney responded: “It’s a publicly funded, it goes back to the
separation of church and state, and there is a no preference, you have public funds
going into a public monument in a public location, and it demonstrates, arguably
demonstrates, a religious preference.”
48. Hickman asked: “Can we put a rifle with a helmet and the boots?” The city
attorney said, “Yes.”
49. Mayor Tisdale said it was the City’s monument and the City Council could
change the design however they pleased.
50. Melendez then made a new motion, stating: “You know what, here’s my
motion to, I think at some point you have to take a stand. I’m sorry, I just think
you do. And I’m going to make a substitute motion that we approve this project as
is.”
51. Magee restated his motion for the “elimination of the religious reference”
and to have City staff develop “another recommendation.” He stated, “We’re
trying to do something nice here . . . we’ve made it a divisive element, it shouldn’t
be divisive . . . so my motion is we continue.”
52. Magee’s motion passed 4-0, with Mayor Tisdale abstaining.
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53. On November 2, 2012, the Redesign Committee held a public meeting and
took testimony from approximately seventeen residents about the design. Four
were against the current proposal (with the Christian cross), two were indifferent,
nine spoke to keep the depiction as proposed, and two spoke to keep the depiction
as proposed but with the addition of a Star of David.
54. The Redesign Committee voted unanimously to amend the design to add a
Star of David without removing the cross and to add numerous additional
Christian crosses in the background, as shown in Exhibit 3. The committee
requested that the new design be presented to the City Council at its meeting on
November 13, 2012.
55. At least three letters were submitted to the City opposing the design. A
fourth letter was submitted in favor of it. The first, dated October 31, 2012, was
sent to the City Council by Jeffrey Crumbaker, representing a “company of
designers and craftsmen specializing in the manufacture of public monuments.”
The letter objected to the design presented at the October 23, 2012, meeting,
containing the Christian cross, and stated that the design lacked originality and
aesthetic value, noting in part: “The copy and artwork is so trite and overused as to
be embarrassing.”
56. The second letter, dated November 7, 2012, was sent to each of the
Councilmembers by the American Humanist Association (“AHA”). It made clear
that monument, with or without the newly added Star of David, violated the
Establishment Clause. A copy of this letter is attached as Exhibit 4.
57. The third letter, dated November 7, 2012, was submitted by the Military
Association of Atheists and Freethinkers (“MAAF”). The letter stated in part: “To
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place a cross or other religious symbol on a memorial for veterans is a slap in the
face to our service. Such an act by the City of Lake Elsinore gives official
sanction to Christianity over all other beliefs. Adding a Star of David would only
serve to patronize Jewish personnel and to further emphasize that worship of a
monotheistic God is ‘approved’ for citizens and that all others are second-class.”
MAAF’s letter included a picture of an alternate design, eliminating the cross but
making no other changes, which noted that the City’s design was “appropriate for
church” and that MAAF’s simple design change would make it “appropriate for
government.”
58. The fourth letter, dated November 12, 2012, was sent by Chris Hyland. Mr.
Hyland favored the cross, and wrote: “I am a believer in having the Cross on the
Memorials; however, with or without the cross this is for the admiration of our
Veterans who gave their lives to protect us. Question those who are objecting to
any religious mention, or cross, or star on the Memorial did they serve in the
military fighting in a war to protect our Nation or ?”
59. At the November 13, 2012, City Council meeting, the Redesign Committee
again proposed the design including the crosses and the Star of David, as shown
on Exhibit 3.
60. Prior to voting, the City Council heard testimony from the public about the
Cross Monument.
61. The first speaker was Sharon Heil, representing the American Legion. Heil
wore a cross around her neck. She spoke in favor of keeping the cross design.
62. The second speaker was Hohenadl. She wore a large Christian cross
around her neck. She said as to the design that “our ancestors came to this country
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with their Christian-Judeo faiths, as Councilmember Melendez said. . . . I’m
afraid because of lawsuit threats we are being blackmailed into sacrificing our
heritage and our beliefs.” She emphasized that the Redesign Committee
intentionally selected a location with “heavy people traffic to observe this
memorial.”
63. The next speaker was Deborah Rodriguez (“Rodriguez”), who spoke in
favor of the cross design. Like Hohenadl and Heil, Rodriguez also wore a large
cross around her neck. Among other things, Rodriguez said that the Christian
cross means “God.” She also said that the country was founded on “Christianity.”
She emphasized a second time that “God is the cross.” She also said “it is my
cross and my cross should stay.” She added that the “handful” of people objecting
to the cross design probably “never served with this country.” She said they
probably “never served for what we believe in.” She continued that they “do not
deserve to take our freedom away to have our cross on the monument.”
Rodriguez’ speech was followed by a loud applause.
64. Barbara Anderson (“Anderson”) spoke next against the cross. She said that
even though the cross was supplemented by the Star of David, the monument left
out “all the others who served.” She said that soldiers who are neither Christian
nor Jewish also deserve to be honored. She noted that she personally is a
Christian. She pointed out that the battlefields containing Christian crosses
reflected the religion of the individual soldiers buried there. She said that
monuments in the United States, such as the ones in Washington, D.C., “do not
have the cross” on them. She concluded that there are numerous other ways to
express appreciation of our service members without the use of religious symbols.
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65. The next speaker was Henry Davie (“Davie”). Davie was a member of the
Redesign Committee and attended all four of its meetings. Davie spoke in favor
of the Christian cross. There was a loud applause following his speech.
66. Ralph Zunker (“Zunker”) also spoke. Zunker was a member of the
Redesign Committee and attended three of its four design meetings. Zunker wore
a large Christian cross around his neck. He spoke in favor of the cross and stated
that he was born and raised a Catholic. He said that for “so few in this city, and I
mean few . . . to think that they are going to have the power [to remove the cross]
and not have been in the military. I don’t know where they came from. They must
have came [sic] from a third world country . . . That’s not a political thing. That’s
up there for civil war veterans, for whatever . . . They didn’t hide behind some
cockamamie outfit in Washington, D.C. . . . I for one, being a veteran, and there’s
40, 50, 60, of them in here, pretty much think just the same way I do. That thing
[the cross] needs to stay just the way it is. . . . This is a symbol for all
denominations of religion if anybody knows anything about religion.” He
continued that he “would like to see [the Star of David] on there” simply because
he believed it “might alleviate a whole lot of things.” He said that the American
Legion and the VFW would provide funds buy “that circle” to make it private in
order to get around the Constitution if necessary. He concluded by saying in
regards to those “few” in opposition to the cross: “these people need to find a
place to live other than America.” His speech was followed by a loud applause.
67. The next speaker was Bill Limebrook. Limebrook was there to propose a
different design – one that he hoped veterans and everyone else could get behind.
He said that the cross design lacked “artistic value” and that he “went online” and
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found clip art identical to the image of the soldier kneeling in prayer before the
cross. Indeed, he noted it was an “exact image.” Limebrook said that the City
could do more than “just a cut out.” He then showed the City Council pictures of
monuments throughout the country, all of them secular, as examples of what an
aesthetically pleasing monument could look like.
68. The next speaker was Nico Melendez, the husband of Councilmember
Melendez. Mr. Melendez sent his comments in an e-mail to the City Council.
His e-mail was read aloud to the public by City Clerk Bloom. Mr. Melendez asked
that no changes be made to the design or location. He specifically approved of
the Star of David and the Christian Cross on the monument. The e-mail was
followed by a loud applause.
69. The next speaker was Rita Thompson (“Thompson”) from Lake Elsinore,
who also sent her comments to the City Council in the form of an e-mail. Mayor
Tisdale read her e-mail to the public. Thompson wrote that while she was not in
favor of “spending public funds on monuments, I am in favor of any design
promoting Bible morality.”
70. Although both AHA and MAAF sent letters to the City Council explaining
that the Cross Monument would be unconstitutional and does not represent those
soldiers who are not Christian or Jewish, the City Council did not read these letters
aloud to the public as they had done with those in support of the cross.
71. Councilmember Weber was the first to speak for the City Council at this
meeting on the issue of the monument. He said that the location at the City
Stadium was ideal because of the foot traffic. He stated that he wanted their
monument to be like the Father Duffy Memorial in Times Square where, he said,
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there is a “cross right there in the middle” such that “thousands of people” see it
every day. He therefore moved to approve the new proposal as is.
72. Melendez spoke next. She noted that the Cross Monument has been
“controversial.” She nevertheless claimed that it honors “all veterans.” Although
she had previously stated that the cross was religious, at this meeting she claimed
that it “has nothing to do with religion.”
73. Hickman spoke next and said that he was the one who suggested the
location at the City Stadium. He selected that location for the “traffic” and for
the “youth” so that they could realize “what life’s about.” He seconded Weber’s
motion.
74. Magee then stated that taxpayer would be on the hook for any lawsuits
against the City. Magee then told the public that Melendez “reached out to a
group that has offered to support us and defend us against any of these actions at
no cost to the City.” Magee was referring to a Christian legal special interest
group called the Pacific Justice Institute.
75. Magee added: “that’s important because the City has been sued more than
once for issues like this.”
76. In moving to support the motion to approve the design with the cross and
Star of David, Magee said he was most persuaded by Deborah Rodriguez’s speech
“talking about her cross.”
77. The City Council then took a vote on the motion to approve the Cross
Monument. It was approved unanimously.
78. The City Council authorized the City to contract with Sun City Granite to
construct the Cross Monument.
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79. The plans approved by the City Council call for the core of the Cross
Monument to be approximately 4 and a half feet tall, 3 feet wide, 8 inches thick
and mounted on an 8-inch thick granite base
GROUNDS FOR RELIEF
First Ground for Relief: Federal Establishment Clause
80. All preceding allegations are incorporated herein by reference.
81. The Defendant’s approval of the design, funding, construction, and display
of the Cross Monument amounts to the advancement of religion (and, specifically,
an endorsement of and affiliation with Christianity and Judaism) in violation of the
Establishment Clause of the First Amendment to the United States Constitution.
82. The Defendant acted under color of state law in violating the First
Amendment as described herein in violation of 42 U.S.C. § 1983.
Second Ground for Relief: California Constitution
83. All preceding allegations are incorporated herein by reference.
84. The Cross Monument, as described above, constitutes an impermissible
establishment of religion in violation the Establishment Clause contained in § 4 of
Article I of the California Constitution.
85. The Cross Monument gives the appearance that the Defendant prefers some
religions (Christianity and Judaism) over all others, and religion in general over
non-religion, in violation of the No Preference Clause contained in § 4 of Article I
of the California Constitution.
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86. The City’s funding of the construction of Cross Monument, and the
donation of City property to display it, violates the No Aid Clause contained in § 5
of Article XVI of the California Constitution.
RELIEF SOUGHT
The Plaintiffs request that this Court grant the following relief:
1. A declaratory judgment that the Defendant’s approval of the design,
funding, construction, and display of the Cross Monument on public property
violates (i) the Establishment Clause of the First Amendment of the United States
Constitution and (ii) Article 1, Section 4 and Article 16, Section 5 of the California
Constitution, and is a violation of the Plaintiffs’ constitutional rights under 42
U.S.C. § 1983;
2. An injunction preventing the Defendant (and any successors or assigns)
from funding or displaying the Cross Monument on public property, or through
subsequent transfer on private property, in violation of the Establishment Clause
and/or the California Constitution;
3. A judgment in the Plaintiffs’ favor for nominal damages;
4. An award to the Plaintiffs of his reasonable costs, disbursements and
attorneys’ fees as allowed by law from the Defendant pursuant to 42 U.S.C. §
1988; and
5. An award of such other and further relief as the Court shall deem just.
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Respectfully submitted,
Dated: April ___, 2013
William Burgess
American Humanist Association
David J.P. Kaloyanides
Attorneys for Plaintiffs
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VERIFICATION
I, the undersigned Plaintiff, have read this Verified Complaint and the same is,
by my own knowledge and upon information furnished to me, true. I declare under
penalty of perjury under the laws of the United States of America that the foregoing is
true and correct.
Dated this ___ day of _____________, 2013.
________________________________
John Larsen
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VERIFICATION
I, the undersigned Plaintiff, have read this Verified Complaint and the same is,
by my own knowledge and upon information furnished to me, true. I declare under
penalty of perjury under the laws of the United States of America that the foregoing is
true and correct.
Dated this ___ day of _____________, 2013.
________________________________
Diana Hansen
Exhibit 1
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[Picture of first version of cross monument]
Exhibit 2
[picture of secular San Clemente memorial]
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Exhibit 3
[picture of approved version of the Cross Monument]
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Exhibit 4
[AHA letter]
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November 7, 2012
Brian Tisdale, Mayor of Lake Eslinore
City council members Daryl Hickman, Melissa Melendez, Peter Weber and Robert Magee
(via email)
cc: Barbara Leibold, City Attorney
Re: City-Owned Religious War Memorial Would Be Unconstitutional
Ladies and Gentlemen:
I am writing to alert you to a serious separation of church and state concern. We have recently
received a complaint from a local resident about a proposed war memorial (the “Memorial”) featuring
an image of a soldier kneeling in prayer before a Christian cross to be constructed by the city of Lake
Elsinore (the “City”) on City-owned property. It is our understanding that the City council is
considering approving the funding and design of the Memorial at its meeting tomorrow. As explained
below, it would be unconstitutional for a religious monument such as the Memorial to be financed and
displayed by the City in this manner.
The American Humanist Association is a national nonprofit organization with over 10,000
members and 20,000 supporters across the country, including in California. The purpose of the
AHA’s legal center is to protect one of the most fundamental legal principles of our democracy: the
constitutional mandate requiring separation of church and state, embodied in the Establishment Clause
of the First Amendment.2
Generally speaking, the Supreme Court has interpreted the Establishment Clause to make clear
that “the Constitution mandates that the government remain secular, rather than affiliate itself with
religious beliefs or institutions.” Co. of Allegheny v. ACLU, 492 U.S. 573, 610 (1989). In order to
secure this freedom from state-backed religion, the Constitution requires that any governmental
actions must have a “secular purpose” and not “advance . . . religion.” Id. at 590. Specifically, the
government “may not promote or affiliate itself with any religious doctrine or organization.” Id.
Courts “pay particularly close attention to whether the challenged governmental practice either has the
purpose or effect of [unconstitutionally] ‘endorsing’ religion.” Id. at 591. Endorsement includes
“conveying or attempting to convey a message that religion or a particular religious belief is favored
or preferred.” Id. at 593. Not only may the government not advance, promote, affiliate with, endorse,
2 The very first sentence of the Bill of Rights mandates that the state be secular: “Congress shall make no law respecting
an establishment of religion.” This provision, known as the Establishment Clause, “build[s] a wall of separation between
church and State.” See Reynolds v. United States, 98 U.S. 145, 164 (1878). Pursuant to the Fourteenth Amendment, the
Establishment Clause applies to the states. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
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prefer or favor any particular religion, it “may not favor religious belief [in general] over disbelief.”
Id. Instead, “religion must be a private matter for the individual, the family, and the institutions of
private choice.” Lemon v. Kurtzman, 403 U.S. 602, 625 (1971).
Applying these general constitutional principles, federal courts have been unanimous in
finding the display of religious war memorials, such as those containing a prominent cross, on public
property to be unconstitutional.3 In fact, “[t]here is no question that the Latin cross is a symbol of
Christianity, and that its placement on public land . . . violates the Establishment Clause.” Separation
of Church & State Comm. v. City of Eugene of Lane County, State of Or., 93 F.3d 617, 620 (9th
Cir.
1996) (emphasis added). It is therefore abundantly clear that the City’s funding, and subsequent
ownership, maintenance and prominent public display, of the Memorial on public land, would violate
the Establishment Clause by affiliating the state with an inherently religious display. Please note that
the potential addition of a Star of David, as several media reports have indicated is under
consideration, does not change this conclusion. As the Supreme Court has clearly noted, “[t]he
simultaneous endorsement of Judaism and Christianity is no less constitutionally infirm that the
endorsement of Christianity alone.” Allegheny at 615.
The fact that the Memorial serves in part the purpose of memorializing the war dead does not
transform its inherently religious nature into something appropriately secular. See e.g. Am. Atheists,
Inc. v. Duncan, 616 F.3d 1145, 1161 (10th
Cir. 2010) (holding that being a memorial does not nullify a
cross’ “religious sectarian content because a memorial cross is not a generic symbol of death; it is a
Christian symbol of death that signifies or memorializes the death of a Christian”). To the contrary,
the use of a cross as a memorial unconstitutionally “give[s] the impression that only Christians . . . are
being honored.” Greater Houston Chapter of Am. Civil Liberties Union v. Eckels, 589 F. Supp. 222,
235 (S.D. Tex. 1984). (Similarly, the inclusion of a Star of David, simply slightly broadens this to
give the impression that only Christian and Jewish veterans are being honored, excluding all others
and unconstitutionally elevating those religions to preferred status.)
This letter should not in any way be misread to imply that those who support the separation of
church and state in general, or AHA in particular, seek in any way to diminish the sacrifice of the
soldiers intended to be honored by the Memorial. It does them, and us all, a great disservice,
however, to conflate patriotism and religion. A Christian cross (or a cross plus a Star of David) does
not represent all of the war dead; it is not the marker chosen by Hindus, Muslims or Buddhists, nor by
atheists, agnostics, humanists or other nonbelievers. They are inherently sectarian symbols. The state
cannot choose such religious symbols to stand for all of the fallen. To do so is to denigrate the service
3 See Trunk v. City of San Diego, 629 F.3d 1099 (9
th Cir. 2011) (war memorial cross in public park unconstitutional), cert.
denied, 132 S. Ct. 2535 (2012); Am. Atheists, Inc. v. Duncan, 616 F.3d 1145 (10th
Cir. 2010) (individualized memorial
crosses for state troopers on public roadside land unconstitutional) cert. denied, 132 S. Ct. 12 (2011); Separation of Church
& State Comm. v. City of Eugene of Lane Co., State of Or., 93 F.3d 617 (9th
Cir. 1996) (war memorial cross erected by
private group in public park unconstitutional); Gonzales v. N. Twp. of Lake County, Ind., 4 F.3d 1412 (7th
Cir. 1993) (war
memorial crucifix in public park unconstitutional because it is “permanent government speech in a prominent public area
that endorses religion”); Am. Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., 698 F.2d
1098 (11th
Cir. 1983) (cross erected by private group on public land unconstitutional); Jewish War Veterans of U.S. v.
United States, 695 F. Supp. 3 (D.D.C. 1988) (war memorial cross on military base unconstitutional “because it conveys a
message of endorsement of Christianity”); Greater Houston Chapter of ACLU v. Eckels, 589 F. Supp. 222 (S.D. Tex.
1984) (three crosses and Star of David war memorial in public park unconstitutional because “[t]hese permanent symbols
become state symbols when placed in a public park, and they convey purely religious messages”). See also Allegheny at
599 (noting that allowing a private group to erect a cross in a courthouse even on a temporary basis would clearly violate
the Establishment Clause).
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of those who have not chosen those religions, relegating them to second class citizen status.4 It sends
the message to those who see it that the government thinks that only Christian and Jews matter to it.5
When the state prefers Judeo-Christianity in this way, it not only betrays those of its citizens who are
not followers of those religions, it violates the separation of church and state, a value held dear by the
founders of our nation and enshrined as a fundamental right in the Constitution they drafted.
Individual soldiers may of course be buried in a grave marked by a headstone bearing a
symbol representing their beliefs if they so choose. The small crosses, Stars of David and other
religious symbols marking individual military graves, such as are found in Arlington National
Cemetery or dotting the distant European fields of battle where the numerous fallen of the First and
Second World Wars lie, are unlike a memorial that purports to speak for larger groups of a war’s dead.
Such small individual symbols at a burial site are each the “marker of an individual grave” and “not a
universal monument to the war dead.” Trunk at 1113. In its context, such a cross speaks only for the
individual buried there, not for the state as a whole. In fact, among the crosses one finds the varied
symbols of a great variety of religious and philosophical beliefs, including those of humanists and
other atheists.6 A group memorial prominently incorporating a particular religion’s symbol, however,
“carries an inherently religious message and creates an appearance of honoring only those servicemen
of that particular religion.” Id. at 1110 and 1102. This is a betrayal not only of other soldiers but of
one of our deepest American values: that we are all, regardless of our opinions on matters of religion,
equal citizens served by a secular government.
As the Ninth Circuit Court of Appeals (which includes California within its jurisdiction) noted
in finding the Mt. Soledad war memorial cross in San Diego unconstitutional, “there are countless
ways that we can and should honor [veterans], but without the imprimatur of state-endorsed religion.”
Trunk at 1102. An appropriate war memorial honors all of the soldiers who fought and died, not just
those who professed a particular favored religion or religions. The government must not, and cannot,
make the rest of its veterans symbolically disappear, or imply that their patriotism or willingness to
sacrifice is suspect, by choosing the symbol of a particular religion to represent them all.
In light of the clear command of our Constitution that the state must remain secular, the City is
constitutionally forbidden to finance or display the proposed Memorial. If you insist on disregarding
your duty to follow the Constitution, litigation may be necessary to compel you to do so. As you may
know, a federal statute, 42 U.S.C. §1983, provides a means for suits seeking to protect civil liberties
rights to be brought in a federal court, which as a remedy for unconstitutional state conduct may issue
an injunction, award damages and provide for the payment of attorney’s fees and costs to a prevailing
plaintiff.
It is not too late, of course, for the City to change the Memorial so that is completely secular in
nature. Consider the powerful secular memorials on our national Mall in Washington, which
4 See Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring, stating that “[e]ndorsement [of religion
unconstitutionally] sends a message to nonadherents that they are outsiders, not full members of the political community,
and an accompanying message to adherents that they are insiders, favored members of the political community”; this view
was adopted by the Supreme Court as a whole in Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309-10 (2000)). 5 In fact, the number of secular Americans is increasing rapidly. According to a Gallup survey dated May 27, 2012, a
third of Americans are nonreligious (i.e. those who describe religion as not being “an important part of their daily life” and
who “seldom or never attend religious services”) and large numbers are also members of minority religions. 6 To see the great variety is use, including those for nonbelievers, visit http://www.cem.va.gov/hm/hmemb.asp.
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powerfully evoke and commemorate the sacrifice of the soldiers of the Second World War and the
Korean and Vietnam wars, all without divisive religious imagery.
When considering this matter, you will likely hear from a loud and self-righteous portion of
the populace that seeks to see its particular religious symbols preferred by the state, basking in the
reflected glory of fallen soldiers.7 They will interpret any withdrawal of a privileged place for their
religion as hostility to it. Such people misunderstand the Constitution’s command that government
remain secular. A secular government is not hostile to religion, but simply remains neutral so as to
protect the religious liberty of all.
The law, and therefore your duty as public servants, is clear. I trust that you will have the
courage to do what is right. Please notify me in writing of your decision with regard to the Memorial.
If you would like to discuss this important matter further, please do not hesitate to contact me at (202)