Attorney Rees Lloyd
May 5, 2010
The U.S. Supreme Court’s recent decision in favor of veterans of The American Legion, Veterans of Foreign Wars, and other veterans service organizations, and against the ACLU in the Mojave Desert WW I Veterans Memorial Cross Case (Buono vs. Salazar), overturning orders obtained by the ACLU to destroy the Latin cross which has stood at the memorial for 76 years, is a victory for freedom of choice with nationwide impact. Its importance cannot be overstated.
What is at stake in the Mojave Desert Veterans Memorial Cross Case, and the companion Mt. Soledad National Veterans Memorial Cross Case, which is pending in the 9th Circuit Court of Appeal and is certain to go to the U.S. Supreme Court, is whether 300-million Americans will continue to have the right to choose how they will honor their war dead and other veterans, including by use of the Cross or other symbols with a religious aspect; or whether the ACLU or single individuals who claim they are “offended” by the sight of a Cross at a veterans memorial will have a veto power over those decisions.
The decision is a great victory for veterans, and a great defeat for the ACLU, which by its secular-cleansing fanaticism has become the Taliban of American liberal secularism.
The Mojave Desert Veterans Memorial was established by VFW members to honor WWI veterans in 1934. It consists of two pipes strapped together in the form of a cross, placed atop a remote rock outcrop known as Sunrise Rock in the desert, eleven miles off of the highway. One has to drive to it to be offended by it. As Justice Alito observed in his concurring opinion: “[A]t least until this litigation, it is likely that the cross was seen by more rattle snakes than humans.”
Notwithstanding, the ACLU sued to destroy the cross as a violation of the Establishment of Religion Clause in 1999, on behalf of plaintiff Frank Buono, on his claim that he is “offended” by the sight of the cross on public land. Buono was the National Park Service’s Ass’t Supervisor of the Mojave Desert Preserve at the time that former President Clinton incorporated the Memorial into the Preserve in 1994. However, Buono did not exercise his authority to stop the incorporation of the memorial cross, never objected to it at the time, never even notified his superiors in Washington that he was offended by it. Rather, Buono waited until he retired on his federal pension, moved to Oregon, then sued to destroy the cross in the desert more than a thousand miles away as ACLU’s aggrieved, “offended observer” plaintiff.
The U.S. District Court in Riverside, CA, in 2002, found the cross violated the Establishment Clause and granted ACLU’s request that it be destroyed. An appeal was immediately taken, preventing the cross from being destroyed. Instead, it was first covered up by a shroud and later by a wooden box which hides it from public view, like an obscene thing. It remains covered.
Meanwhile, when the cross destruction order became known, American Legionnaires in California’s District 21 in Riverside County, comprising 22 Posts and 6,000 members, took action which grew to become a nationwide campaign of The American Legion, the largest wartime veterans organization in the world with 2.5-million members in some 14,000 Posts.
Congressman Jerry Lewis (R-CA) was asked by District 21 Legionnaires for legislative help, and responded, first, by authoring legislation designating the memorial as as the National WWI Veterans Memorial, the first and only WWI National Memorial.
Congressman Lewis further authored, sponsored, and successfully achieved passage of legislation providing that the Memorial site would be returned to private hands by a land exchange in which the one-acre site would be exchanged for five-acres of land donated by the Sandoz family, which has cared for the memorial for many years. The legislation provides that the memorial site will be maintained by the VFW, whose members had originally established it. A resolution which I authored and California sponsored placing The American Legion strongly behind Rep. Lewis’ legislative efforts was adopted the National American Legion in 2003 as national policy.
Although the land-exchange statute crafted by Rep. Lewis removed the cross from public land, that did not satisfy the ACLU, which returned to the Riverside Court to complain that Congress was just thumbnosing the court, evading the court’s order to destroy the cross. ACLU requested that the Court expand its injunction to enjoin Congress, which the Court granted, invalidating the Congressional Act, and enjoining Congress from passing any legislation to transfer the memorial site to private hands.
As appeals proceeded, the National American Legion 2004 Convention adopted Resolution 326, “Preserve Mojave Desert Veterans Memorial,” which I authored, Riverside Post 79 initiated, District 21 adopted as did the California Convention, which then sponsored the Resolution at the National Convention where it was unanimously adopted. Resolution 326 became the mandate for The American Legion’s nationwide campaign against the ACLU’s Establishment Clause litigation attacks. Further resolutions were adopted at the 2005 and 2006 Conventions, and reaffirmed biannually.
Among other things, Resolution 326, led to introduction, and passage by the House of Representatives in 2006, of the Veterans Memorials, Boy Scouts, Public Seals and Other Expressions of Public Religion Act (“PERA”). PERA rescinds the authority of the courts to award attorney fees, at taxpayer-expense, to the ACLU or anyone else in Establishment Clause attacks. It stalled in the Senate when the Democrats took control of Congress. The PERA bill has been reintroduced in this Congress, although prospects for passage are not bright under the Obama regime.
Further in 2006, the Defense of Veterans Memorials Project of The American Legion Department and the Alliance Defense Fund was co-founded by ADF Vice President Joseph Infranco and me. For the first time, the American Legion entered the litigation in the Mojave Desert and Mt. Soledad National Veterans Memorial cases, appearing as amicus curiae in briefs in the California Court of Appeal, the U.S. District Courts, the Ninth Circuit Court of Appeals, and the U.S. Supreme Court.
The U.S. Supreme Court decision overturned the decision of the 9th Circuit upholding the District Court cross destruction order and invalidation of the Congressional Act. It remanded the case for further proceedings to determine if there is any need for injunctive relief in light of the Lewis land-exchange statute, and the Supreme Court’s opinion.
The Supreme Court held that the lower courts erred in their cavalier invalidation of the Act of Congress achieved by Congressman Lewis as an “evasion” of their orders to destroy the cross. More specifically, The Supreme Court held, in the Court’s judgment and majority opinion written by Justice Kennedy:
“Congress adopted a policy with respect to land it now owns in order to resolve a specific controversy….The land-transfer statute embodies Congress’s legislative judgment that this dispute is best resolved through a framework and policy of accommodation for a symbol that, while challenged under the Establishment Clause, has complex meaning beyond the expression of religious views. That judgment should not have been dismissed as an evasion [of the courts’ destruction orders], for the statute brought about a change of law and a congressional statement of policy applicable to the case.”
Justice Kennedy, with some eloquence, made observations in the Court’s judgment and opinion regarding the Latin cross which reject the ACLU’s consistent position in this and other Establishment Clause cases, including the Mt. Soledad Memorial Cross Case pending in the 9th Circuit.
Justice Kennedy wrote for the court: “[A] Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, a Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles who tragedies are compounded if the fallen are forgotten.”
Kennedy further stated, in contradiction to the ACLU’s position: “The goal of avoiding governmental endorsement [of religion] does not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.”
Justice Kennedy’s opinion was joined by Chief Justice Roberts, and Justice Alito, who concurred in the judgment and the opinion in part, writing that he would not have remanded the case to the lower courts but would have the Supreme Court enter final judgment that the Lewis land-exchange statute is valid.
Justice Scalia, joined by Justice Thomas, joined in the judgment, but filed a separate opinion disagreeing that “offended observer” Plaintiff Buono acquired legal “standing” because he had obtained a judgment below and the government failed to appeal, giving him standing to defend his judgment. Scalia and Thomas argued that Buono, the plaintiff “offended” by the cross 1,000 miles away, should never have been granted standing in the first place, and had no standing to expand the original injunction to enjoin Lewis’ land-swap statute.
Chief Justice Roberts wrote a one paragraph common-sense concurrence: “At oral argument, [ACLU attorney Peter Eliasberg] stated that it ‘likely would be consistent with the injunction’ for the Government to tear down the cross, sell the land to the [VFW] return the cross to them, with the FW immediately raising the cross again….I do not see how it an make a difference for the Government to skip that empty ritual and do what Congress told it to do – sell the land with the cross on it. ‘The Constitution deals with substance, not shadow’,” he concluded.
Justice Stevens, who is retiring, wrote a dissent arguing that the cross violated the establishment clause, it was not an inclusive symbol, and that Lewis’ statute was for an “illicit purpose,” i.e., to evade the lower court’s order to destroy the cross. Justice Stevens was joined, predictably enough, by Clinton-appointee Justice Ginsburg, the former General Counsel of the ACLU who never recuses herself from ACLU cases; and Justice Sotomeyer, Obama-appointee who describes herself as a Puerto Rican female “affirmative action baby” (her words)
Justice Breyer, Clinton-appointee who describes himself as being “proud to be the seventh Jewish Justice” to sit on the high court (Ginsberg being the sixth), wrote a separate dissent. Breyer has written that it is not the duty of Supreme Court Justices to interpret the Constitution on the basis of the original intent of the Founding Fathers who wrote it, but to interpret it as a “living, organic constitution” to be interpreted the Supreme Court in light of modern circumstances, no matter what the Founding Fathers intended. A view shared by Ginsberg and Sotomeyer.
ACLU Attorney Peter Eliasburg has vowed to continue litigating to destroy the cross on remand.
American Legion National Commander Clarence Hill hailed the Supreme Court’s decision as “a return to common sense.” He said the Legion would continue to fight the ACLU in the Mojave Case and the Mt. Soledad National Veterans Memorial, now in its 21st year of ACLU litigation.
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Congressman Lewis also hailed the Supreme Court decision, and saluted the efforts of veterans of the Legion and VFW in the long fight to preserve the Mojave Veterans Memorial.
As for the Legionnaires in California’s District 21 in Riverside County who started the Legion’s fight eight long years ago, and have now beaten the ACLU in the Supreme Court, they have vowed to continue to fight the ACLU pursuant to their slogan: “For God And Country Forever; Surrender To The ACLU – Never!”
[Rees Lloyd, longtime civil rights attorney and American Legionnaire, is the director of the Defense of Veterans Memorials Project of the American Legion Department of California and the Alliance Defense Fund.]
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REES LLOYD is a longtime civil rights attorney and veterans activist whose work has been honored by, among others, the California Senate and Assembly, and numerous civil rights, workers rights, and veterans rights organizations. He has testified as a constitutional expert at hearings before the U.S. House and Senate representing The American Legion.
He has been profiled, and his work featured, by such varied print media as the Los Angeles Times and American Legion Magazine, and such broadcast media as ABC's Nightline and 20/20, Fox News In The Morning, and, among others, by Hannity. His writings have appeared in a variety of national, regional, and local newspaper, magazine, and other publications. He is a frequent radio commentator, and a sought after speaker.*
[*For identification only. The views expressed here are solely Rees Lloyd's and not necessarily any person, entity or organization he may otherwise represent. ]