Amicus Curiae Brief — The American Legion, et al., Petitioners v. American Humanist Association, et al.

Nos. 17-1717 & 18-18

In the Supreme Court of the United States

THE AMERICAN LEGION, ET AL.,

Petitioners,

v.

AMERICAN HUMANIST ASSOCIATION, ET AL.,

Respondents.

MARYLAND-NATIONAL CAPITAL

PARK AND PLANNING COMMISSION,

Petitioner,

v.

AMERICAN HUMANIST ASSOCIATION, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF OF MAJOR GENERAL PATRICK BRADY

AND VETERANS GROUPS ERECTING AND

MAINTAINING WAR MEMORIALS AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

KRISTEN K. WAGGONER

JOHN J. BURSCH

DAVID A. CORTMAN

Counsel of Record

ALLIANCE DEFENDING FREEDOM

440 First Street NW, Suite 600

Washington, D.C. 20001

(202) 393-8690

dcortman@adflegal.org

H. WOODRUFF TURNER

JENNA M. LORENCE

WESLEY A. PRICHARD

K&L GATES LLP

K&L Gates Center

210 Sixth Ave.

Pittsburgh, PA 15229

(412) 355-6478

Counsel for Amici Curiae

(Additional Counsel on inside cover)

JONATHAN A. SCRUGGS

RORY T. GRAY

BRETT B. HARVEY

NATHANIEL BRUNO

ALLIANCE DEFENDING FREEDOM

440 First Street NW, Suite 600

Washington, D.C. 20001

(202) 393-8690

REES LLOYD

Attorney, General Counsel

AMERICAN LEGION

NEWPORT HARBOR POST 291

215 15th Street

Newport Beach, CA 92663

(951) 867-1551

Counsel for Amici Curiae

i

QUESTION PRESENTED

Nearly a century ago, the Bladensburg World

War I (“WWI”) Memorial—like countless other

monuments—was

dedicated

to

honor

and

memorialize 49 soldiers from Prince George’s County,

Maryland, who gave their lives in service to our

country.

Does

that

Memorial

violate

the

Establishment Clause merely because it is shaped like

a cross?

ii

TABLE OF CONTENTS

Question Presented ..................................................... i

Table of Contents ....................................................... ii

Table of Authorities................................................... iii

Interest of Amici Curiae ..............................................1

Introduction and Summary of Argument ...................3

Argument .....................................................................5

I.

Respondents lack standing because personal

offense is an insufficient injury in fact to

confer it..................................................................5

II. Lemon should be overruled as ahistorical and

incapable of consistent application. .....................8

III. This Court should articulate an

Establishment Clause standard defined by a

liberty-based principle and rooted in our

nation’s history and tradition. ............................ 14

A. The government cannot limit individual

liberty by forcing or coercing

participation in any religious exercise......... 20

B. The government cannot limit religious

liberty by giving direct benefit to religion

to such a degree that it creates a state

religion or institutes a particular creed....... 22

C. Applying the liberty-based principle here,

the Bladensburg Memorial does not

constitute an establishment of religion. ...... 24

Conclusion ................................................................. 28

iii

TABLE OF AUTHORITIES

Cases

ACLU of New Jersey v. Black Horse Pike

Regional Board of Education,

84 F.3d 1471 (3d Cir. 1996) .................................. 13

Alvarado v. City of San Jose,

94 F.3d 1223 (9th Cir. 1996) ................................ 16

American Atheists, Inc. v. Davenport,

637 F.3d 1095 (10th Cir. 2010)......................... 9, 13

American Humanist Association v. M-NCPPC,

874 F.3d 195 (4th Cir. 2017) .................................. 6

Arizona Christian School Tuition

Organization v. Winn,

563 U.S. 125 (2011).......................................... 6-7, 8

Board of Education of Kiryas Joel Village

School District v. Grumet,

512 U.S. 687 (1994)................................................. 9

Books v. Elkhart County,

401 F.3d 857 (7th Cir. 2005) .................................. 6

Catholic League for Religious & Civil Rights v.

City & County of San Francisco,

624 F.3d 1043 (9th Cir. 2010) ................................ 6

Committee for Public Education & Religious

Liberty v. Regan,

444 U.S. 646 (1980)................................................. 9

County of Allegheny v. ACLU, Greater

Pittsburgh Chapter,

492 U.S. 573 (1989)....................................... passim

Edwards v. Aguillard,

482 U.S. 578 (1987)......................................... 15, 22

iv

Elk Grove Unified School District v. Newdow,

542 U.S. 1 (2004)................................................... 19

Elmbrook School District v. Doe,

134 S. Ct. 2283 (2014)........................................... 12

Engel v. Vitale,

370 U.S. 421 (1962)............................................... 15

Everson v. Board of Education,

330 U.S. 1 (1947)....................................... 15, 20, 22

Freedom From Religion Foundation, Inc. v.

New Kensington Arnold School District,

832 F.3d 469 (3d Cir. 2016) .................................... 6

Koenick v. Felton,

190 F.3d 259 (4th Cir. 1999) ................................ 13

Kondrat’yev v. City of Pensacola,

903 F.3d 1169 (11th Cir. 2018)............................. 13

Lamb’s Chapel v. Center Moriches Union Free

School District,

508 U.S. 384 (1993)............................................. 4, 9

Lee v. Weisman,

505 U.S. 577 (1992)............................................... 20

Lemon v. Kurtzman,

403 U.S. 602 (1971)....................................... passim

Lewis v. Casey,

518 U.S. 343 (1996)................................................. 5

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)................................................. 5

Lynch v. Donnelly,

465 U.S. 668 (1984)............................................. 4, 9

Marsh v. Chambers,

463 U.S. 783 (1984)......................................... 18, 19

v

McCreary County v. American Civil Liberties

Union of Kentucky,

545 U.S. 844 (2005)......................................... 10, 11

McDaniel v. Paty,

435 U.S. 618 (1978)............................................... 20

Mount Soledad Memorial Association v.

Trunk,

567 U.S. 944 (2012)............................................... 13

O’Connor v. Washburn University,

416 F.3d 1216 (10th Cir. 2005)............................. 13

Red River Freethinkers v. City of Fargo,

679 F.3d 1015 (8th Cir. 2012) ................................ 6

Salazar v. Buono,

559 U.S. 700 (2010)................................... 12, 13, 25

Schlesinger v. Reservists Committee to Stop the

War,

418 U.S. 208 (1974)................................................. 7

School District of Abington Township v.

Schempp,

374 U.S. 203 (1963)............................................... 17

Town of Greece v. Galloway,

572 U.S. 565 (2014)....................................... passim

Trinity Lutheran Church v. Comer,

137 S. Ct. 2012 (2017)........................................... 22

United States v. Hays,

515 U.S. 737 (1995)................................................. 5

Utah Highway Patrol Association v. American

Atheists, Inc.,

132 S. Ct. 12 (2011)............................... 9, 11, 13, 14

vi

Valley Forge Christian College v. Americans

United for Separation of Church & State, Inc.,

454 U.S. 464 (1982)................................. 3, 5, 6, 7, 8

Van Orden v. Perry,

545 U.S. 677 (2005)............................. 10, 12, 13, 26

Wallace v. Jaffree,

472 U.S. 38 (1985)................................................. 10

Witters v. Washington Department of Services

for the Blind,

474 U.S. 481 (1986)............................................... 23

Zelman v. Simmons-Harris,

536 U.S. 639 (2002)............................................... 22

Zobrest v. Catalina Foothills School District,

509 U.S. 1 (1993)................................................... 22

Zorach v. Clauson,

343 U.S. 306 (1952)............................................... 18

Constitution/Statutes/Rules

U.S. Constitution Amendment I .............................. 14

Other Authorities

Patriot Outreach, General Hays Veterans

Memorial, http://www.patriotoutreach.org/

General_Hays_Veterans_Memorial.html ................. 2

1

INTEREST OF AMICI CURIAE

Amici curiae are Major General Patrick Brady—a

Medal of Honor recipient and one of the most

decorated soldiers in American history—and seven

veterans groups representing thousands of veterans.

Descriptions of all Amici and their particular interests

in this case appear in the appendix to this brief. Amici

are dedicated to honoring and serving veterans and

their families, as well as publicly remembering those

who gave their last full measure of devotion for the

cause of freedom.1

This case is about how our country may

commemorate its fallen servicemembers. Amici seek

to ensure that existing memorials are undisturbed

and protected as public monuments to venerate the

honor, valor, and sacrifice of those who have died in

service to this country. In Judge Wilkinson’s words,

Amici want to make certain that “those honored [are

left] to rest in peace.”

Several Amici, like many other veterans groups

across the country, are also designing new memorials

to honor their fallen comrades. But, because of the

confusion and unpredictability that characterizes

current Establishment Clause jurisprudence, they

have no clear standard by which to predict what

symbols, designs, or words might run afoul of the

Establishment Clause.

1 All parties have filed blanket consents to the filing of amicus

briefs. No counsel for any party authored this brief in whole or in

part, and no person or entity other than Amici and their counsel

funded its preparation or submission.

2

For example, some Amici are designing the

General Hays Veterans Memorial that will be built in

Hays, Kansas, and will commemorate the service of

veterans from the “High Plains” of Northwest

Kansas.2 The current design for that memorial is

simple: five individual walls positioned in the shape of

a star, each representing a branch of the armed forces.

The entrance plaque to the memorial would include a

fitting quote, attributed to Jesus: “Greater love hath

no man than this, that a man lay down his life for his

friends.” Under current Establishment Clause

jurisprudence, one person who happened to take

offense to this quote could potentially scuttle Amici’s

efforts to commemorate veterans’ noble sacrifices.

The confused state of the law chills Amici’s efforts

to honor veterans by erecting new memorials and

maintaining existing ones. Amici have a strong

interest in this Court providing a clear, consistent,

and predictable standard for analyzing passive

displays under the Establishment Clause. This clarity

is needed so that Amici may design veterans’

memorials without inviting needless litigation.

2

See Patriot Outreach, General Hays Veterans Mem’l,

http://www.patriotoutreach.org/General_Hays_Veterans_Memo

rial.html (last accessed Dec. 17, 2018).

3

INTRODUCTION AND SUMMARY OF

ARGUMENT

This case is about a WWI memorial in

Bladensburg, Maryland that was dedicated nearly a

century ago for the sole purpose of honoring 49

soldiers who gave their lives in service to our country.

The Fourth Circuit decided that the Bladensburg

Memorial is unconstitutional because it is shaped like

a cross. That decision is wrong. This Court has never

held that the Establishment Clause requires

eradicating any symbol with religious meaning from

the public square. Not only does the Fourth Circuit’s

decision below jeopardize other, similar memorials, it

also conflicts with this Court’s precedent in two

primary respects.

First, the Fourth Circuit improperly lowered the

Article III standing requirements for Establishment

Clause claims. The court held that mere subjective

offense at a government expression that recognizes or

even alludes to religion is itself sufficient to confer

standing. Numerous other courts of appeals have

agreed with the Fourth Circuit. This Court should

reaffirm that this ‘offended observer’ standing does

not pass constitutional muster because “psychological

consequence presumably produced by observation of

conduct with which one disagrees” is never a sufficient

injury in fact. Valley Forge Christian Coll. v. Am.

United for Separation of Church & State, Inc., 454

U.S. 464, 485 (1982).

Second, the Fourth Circuit’s application of Lemon

v. Kurtzman, 403 U.S. 602 (1971), is exemplary of “the

strange Establishment Clause geometry of crooked

lines and wavering shapes [that Lemon’s]

4

intermittent use has produced.” Lamb’s Chapel v. Ctr.

Moriches Union Free Sch. Dist., 508 U.S. 384, 399

(1993) (Kennedy, J., concurring). This case offers the

Court an ideal opportunity to overrule Lemon and

replace it with a test tied to the Establishment

Clause’s

history

and

purpose.

Government

acknowledgements of religion do not offend the

Constitution if they have no concrete impact on

religious freedom, such as forcing or coercing

participation in religious activities or actually

threatening to establish a state religion.

Justices of this Court have distilled this libertybased principle, rooted in history, into two core areas

of concern: the government cannot (1) force people to

“support or participate in any religion or its exercise;”

or (2) “give direct benefits to a religion in such a

degree that it in fact establishes a state religion, or

tends to do so.” Cty. of Allegheny v. ACLU, Greater

Pittsburgh Chapter, 492 U.S. 573, 659, 667 (1989)

(Kennedy, J., concurring and dissenting in part); see

also Town of Greece v. Galloway, 572 U.S. 565, 608

(2014) (Thomas, J., concurring).

This liberty-based principle embraces the

“unbroken history of official acknowledgement by all

three branches of government of the role of religion in

American life,” Lynch v. Donnelly, 465 U.S. 668, 674

(1984), rather than dismissing historical practices as

random gestures undertaken without justification.

Further, it stops courts from displaying hostility to

religion by looking for a less-religious alternative

where “there will always be a more secular alternative

available.” Allegheny, 492 U.S. at 676 (Kennedy, J.,

concurring and dissenting in part).

5

By making individual liberty the touchstone of a

First Amendment violation, the Establishment

Clause will regain objective meaning capable of

guiding lower courts, officials, and citizens. Such a

test makes historical practices and their modern

counterparts guideposts, not anomalies. This Court

should therefore overrule Lemon and enunciate a new

Establishment Clause test that functions as a

structural restraint on the government actually

establishing a state religion.

ARGUMENT

I.

Respondents

lack

standing

because

personal offense is an insufficient injury in

fact to confer it.

Although Petitioners have not raised standing, it

is “jurisdictional and not subject to waiver.” Lewis v.

Casey, 518 U.S. 343, 349 n.1 (1996). This Court is able

“to address the [standing] issue even if the courts

below have not passed on it, and even if the parties

fail to raise” it. United States v. Hays, 515 U.S. 737,

742 (1995) (quotation omitted). The “irreducible

constitutional minimum of standing” includes the

requirement of an “injury in fact.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992). An injury in fact

requires proof of “an invasion of a legally protected

interest” that is “concrete and particularized.” Ibid.

Standing does not exist where the only alleged

injury is the “psychological consequence presumably

produced by observation of conduct with which one

disagrees.” Valley Forge, 454 U.S. at 485. Valley Forge

held that only litigants who were “subjected to

unwelcome religious exercise or were forced to assume

6

special burdens to avoid them” have the requisite

injury in fact to bring Establishment Clause claims.

Id. at 486 n.22 (emphasis added).

The Fourth Circuit lowered that Article III bar

when it held that “regularly encounter[ing] the Cross

as residents while driving in the area” was sufficient

to give Respondents standing to seek the Memorial’s

removal. Am. Humanist Assoc. v. M-NCPPC, 874 F.3d

195, 203 (4th Cir. 2017). Many other courts of appeals

have ignored this Court’s injury-in-fact standard.

Instead of requiring those raising an Establishment

Clause claim to prove that the government is

conducting some religious exercise and requiring

participation in that exercise, mere observation, or

“unwelcome contact,” with a display that has a

religious element is frequently found to be sufficient

for standing. See id. at 204 (unwelcome contact

sufficient to confer standing); Freedom From Religion

Found., Inc. v. New Kensington Arnold Sch. Dist., 832

F.3d 469, 476 (3d Cir. 2016) (same); Red River

Freethinkers v. City of Fargo, 679 F.3d 1015, 1023 (8th

Cir. 2012) (same); Catholic League for Religious &

Civil Rights v. City & Cty. of San Francisco, 624 F.3d

1043, 1052 (9th Cir. 2010) (en banc) (same). In short,

courts have developed an Establishment Clause

standing jurisprudence that is “impossible to reconcile

with Valley Forge,” Books v. Elkhart Cty., 401 F.3d

857, 871 (7th Cir. 2005) (Easterbrook, J., dissenting),

an error-ridden jurisprudence that this Court should

correct.

This Court has already rejected the notion that

Establishment Clause claims require a lesser degree

of injury than others. Ariz. Christian Sch. Tuition

7

Org. v. Winn, 563 U.S. 125, 146 (2011) (hereinafter

“ACSTO”) (“To alter the rules of standing or weaken

their requisite elements would be inconsistent with

the case-or-controversy limitation on federal jurisdiction imposed by Article III.”). And as Valley Forge

explained, “‘the assumption that if respondents have

no standing to sue, no one would have standing, is not

a reason to find standing.’” 454 U.S. at 489 (quoting

Schlesinger v. Reservists Comm. to Stop the War, 418

U.S. 208, 227 (1974) (emphasis added)). Petitioners’

lack of standing in this case does not foreclose the

opportunity to redress an offense. Citizens routinely

and properly use the ballot box to encourage or

discourage government action on innumerable

matters outside of a court’s jurisdiction.

Here, the only injury Respondents allege is

personal offense, with no compulsion or coercion to

participate in any religious exercise. Respondent

Lowe’s sole alleged injury is being “personally

offended and feel[ing] excluded by this governmental

message.” JA29. But no one is forcing Mr. Lowe to

view the Memorial or excluding him from anything.

See JA2950, M-NCPPC, 874 F.3d 195 (4th Cir. 2017)

No. 14-550. Respondent Edwords alleges unwelcome

viewing of the Memorial on several occasions. See

JA30. Again, there is no government compulsion or

coercion related to that viewing, and no one is making

Mr. Edwords unwelcome. See JA2763, M-NCPPC, 874

F.3d 195 (4th Cir. 2017) No. 14-550. Finally,

Respondent McNeill believes that the Memorial is “a

religious symbol, and that—it offends [him] at its

deepest core.” Id. at 2832. But the government is not

forcing him to hold that belief or to visit the Memorial

at all. Id. at 2830.

8

In sum, no evidence exists that the government

has forced Respondents to participate in any religious

exercise or assume any special burden to avoid doing

so. And viewing the Memorial is not a religious

exercise in and of itself. Respondents lack standing

because their only alleged injury in fact—subjective

personal offense—is insufficient to confer it.

None of this is to say that standing will never exist

in Establishment Clause cases. Plaintiffs “may

demonstrate standing based on the direct harm of

what is claimed to be an establishment of religion,

such as mandatory prayer in a public school

classroom.” ACSTO, 563 U.S. at 129–30. But no such

injury is alleged here. Despite the sincere offense

Respondents claim when driving past the

Bladensburg Memorial, viewing a passive display

honoring our nation’s veterans is not a religious

exercise.

Because drive-by offense is not sufficient for

Article III standing, this Court should hold that

Respondents lack standing to seek the Memorial’s

removal and reaffirm that the mere “observation of

conduct with which one disagrees” does not constitute

an injury in fact sufficient to confer standing. Valley

Forge, 454 U.S. at 485.

II. Lemon should be overruled as ahistorical

and incapable of consistent application.

In addition to Respondents’ lack of standing, there

is no clear standard to evaluate their Establishment

Clause claim. The Lemon test was originally

formulated to decide whether direct state funding to

private religious schools violated the Establishment

9

Clause. Lemon, 403 U.S. at 606. But, 47 years later,

Lemon is a failure. It has defied consistent

application, resulting only in irreconcilable and

incoherent jurisprudence, particularly for passive

observation of government expressions that in one

way or another acknowledge the role that religion

plays in American life. See, e.g., Lamb’s Chapel, 508

U.S. at 398–99 (Scalia, J., concurring) (collecting cases

applying, ignoring, or criticizing Lemon); Comm. for

Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646,

671 (1980) (Stevens, J., dissenting) (lamenting “the

sisyphean task of trying to patch together the blurred,

indistinct, and variable barrier described in Lemon”).

The impossibility of applying Lemon consistently

has only become more apparent as this Court

continues to “continually try to patch [it] up.” Bd. of

Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512

U.S. 687, 720 (1994) (O’Connor, J., concurring). These

additions to Lemon include the “endorsement” test,

Lynch, 465 U.S. at 687–94 (1984) (O’Connor, J.,

concurring), which ultimately modified Lemon.

The Lemon/endorsement test produces inconsistent results because it hinges on the perceptions of an

imaginary observer who is often “biased, replete with

foibles, and prone to mistake.” Am. Atheists, Inc. v.

Davenport, 637 F.3d 1095, 1108 (10th Cir. 2010)

(Gorsuch, J., dissenting from the denial of rehearing

en banc). It does not provide meaningful guidance for

judges or litigants because—after nearly 50 years—no

one agrees on what the “objective observer” sees,

knows, or feels. See Utah Highway Patrol Ass’n v. Am.

Atheists, Inc., 132 S. Ct. 12, 19 (2011) (Thomas, J.,

dissenting from the denial of certiorari). Rather,

10

Lemon habitually yields plurality opinions that fail to

provide lower courts, officials, and citizens with useful

guidance. See Wallace v. Jaffree, 472 U.S. 38, 110

(1985) (Rehnquist, J., dissenting).

Further, the Lemon test offers no guidance to

courts on how they should consider historical

acknowledgments of religion. While this Court has

held that the historical context of a monument is

relevant, Van Orden v. Perry, 545 U.S. 677, 689 (2005)

(plurality) and at 699 (Breyer, J., concurring), the

scope of the relevant history varies depending on the

jurist’s perspective. For example, when considering a

Ten Commandments display in Texas, the Van Orden

plurality noted that “[o]ur opinions, like our building,

have recognized the role the Decalogue plays in

America’s heritage.” Ibid. (plurality). But, on that

same day, this Court also held that a different Ten

Commandments display in Kentucky violated the

Establishment Clause in part because the framers of

the Bill of Rights did not have a “common

understanding about the limits of the establishment

prohibition.” McCreary v. ACLU of Ky., 545 U.S. 844,

879 (2005). These dueling opinions create confusion

about the weight national history or a display’s

individual history should receive.

Because it focuses on individual perceptions and

employs historical facts at random, Justice Kennedy

rightly labeled the Lemon/endorsement test

“unworkable in practice.” Allegheny, 492 U.S. at 669

(Kennedy, J., concurring and dissenting in part). Its

“unguided examination of marginalia,” he wrote, “is

irreconcilable with the imperative of applying neutral

principles in constitutional adjudication,” would

11

create “inevitable difficulties” for application, and

“trivialize constitutional adjudication.” Id. at 674–76.

Two decades later, Justice Thomas demonstrated

that this warning had come true. See Utah Highway

Patrol, 132 S. Ct. at 12 (Thomas, J., dissenting from

the denial of certiorari). The Lemon/endorsement test

has proven “entirely unpredictable,” “render[ing] even

the most minute aesthetic details of a religious

display relevant to the constitutional question” and

requiring the evaluation of these displays through the

eyes of an ill-defined “hypothetical observer.” Id. at

19, 20, 22. The result is that courts may hold

memorials with a wholly secular purpose and effect

unconstitutional due to “the misperception of an

imaginary observer.” McCreary, 545 U.S. at 901

(Scalia, J., dissenting) (emphasis in original). “That a

violation of the Establishment Clause turns on an

observer’s potentially mistaken belief that the

government has violated the Constitution, rather

than on whether the government has in fact done so,

is perhaps the best evidence that Establishment

Clause jurisprudence has gone hopelessly awry.” Utah

Highway Patrol, 132 S. Ct. at 19 n.7 (Thomas, J.,

dissenting).

Further, cases like Allegheny and McCreary can

be misread as instructing architects and designers to

seek out a “less-religious alternative” to any element

in a display that may have a religious connotation.

McCreary, 545 U.S. at 847 (suggesting that “tablets

with 10 roman numerals” could have referenced the

Ten Commandments’ historical value without “a

sectarian conception of faith”); Allegheny, 492 U.S. at

618 (plurality) (holding that a menorah was

12

constitutional in part because there were no

“reasonable alternatives that [were] less religious in

nature” to celebrate Chanukah). This “less-religious

alternative” rule creates a one-way ratchet that

exhibits hostility towards religion and drives it from

public view. It is one of the many ways that Lemon

allows aversion to religion generally and to displays

with religious symbolism in particular “to be enforced

directly through the First Amendment.” Elmbrook

Sch. Dist. v. Doe, 134 S. Ct. 2283, 2283 (2014) (Scalia,

J., dissenting from the denial of certiorari).

Lemon should be replaced because the Establishment Clause does not “compel the government to

purge from the public sphere all that in any way

partakes of the religious.” Van Orden, 545 U.S. at 699

(Breyer, J., concurring); see also id. at 690 (plurality).

Constitutional adjudication must “deal[] with

substance, not shadows.” Salazar v. Buono, 559 U.S.

700, 723 (2010) (Roberts, C.J., concurring) (internal

quotation omitted). But Lemon is incapable of doing

so. Because of Lemon, six Justices of this Court were

forced to point out in Buono that the Establishment

Clause does not create a per se rule against crossshaped memorials. 559 U.S. at 721 (plurality) and at

747 n.7 (Stevens, J., dissenting). And on multiple

occasions, Lemon has caused lower courts to ignore

the fact that a cross-shaped memorial “evokes far

more than religion”: it “evokes thousands of small

crosses in foreign fields marking the graves of

Americans who fell in battles, battles whose tragedies

are compounded if the fallen are forgotten.” Id. at 721

(plurality). Any test that promotes such an illinformed approach to constitutional decision-making

should be jettisoned.

13

There is no need to belabor the disjointed state of

Establishment Clause jurisprudence, because at least

five members of this Court have advocated abandoning or at least significantly revising Lemon.3 But

lower courts are bound by Lemon until this Court

overrules it. E.g., Kondrat’yev v. City of Pensacola, 903

F.3d 1169, 1174 (11th Cir. 2018) (“And at least as

matters now stand, neither Lemon nor Rabun has

been ‘directly overruled.’ Accordingly, our hands are

tied.”); O’Connor v. Washburn Univ., 416 F.3d 1216,

1224 (10th Cir. 2005) (“Until the Supreme Court

overrules Lemon, . . . it remains binding law . . . .”);

Koenick v. Felton, 190 F.3d 259, 264 (4th Cir. 1999)

(“[U]ntil the Supreme Court overrules Lemon and

provides an alternative analytical framework, this

Court must rely on Lemon . . . .” (internal citations

omitted)); ACLU of N.J. v. Black Horse Pike Reg’l Bd.

of Educ., 84 F.3d 1471, 1484 (3d Cir. 1996) (“Lemon

remains the law of the land . . . .”).

3 Buono, 559 U.S. at 720–21 (2010) (plurality opinion of Kennedy,

J., joined in full by Roberts, C.J.) (expressing doubt as to whether

the endorsement test is “appropriate” for religious displays);

Utah Highway Patrol, 132 S. Ct. at 21 (Thomas, J., dissenting

from the denial of certiorari) (endorsement test “invites this type

of erratic, selective analysis of the constitutionality of religious

imagery on government property.”); Van Orden, 545 U.S. at 703–

04 (Breyer, J., concurring) (rejecting “the literal application of

any particular test”); Mount Soledad Mem’l Ass’n v. Trunk, 567

U.S. 944 (2012) (Alito, J., statement respecting the denial of

certiorari) (“This Court’s Establishment Clause jurisprudence is

undoubtedly in need of clarity.”); Davenport, 637 F.3d at 1110

(10th Cir. 2010) (Gorsuch, J., dissenting from the denial of

rehearing en banc) (“But whether even the true reasonable

observer/endorsement test remains appropriate for assessing

Establishment Clause challenges is far from clear.”).

14

Lemon fails to offer a workable or consistent

Establishment Clause standard. See Utah Highway

Patrol, 132 S. Ct. at 18–21 (Thomas, J., dissenting

from the denial of certiorari). This chills Amici who

desire to erect new monuments and protect historic

memorials. Those designing, building, and maintaining memorials dedicated to our nation’s fallen must

parse a minefield of case law, hoping that they do not

wrongly divine the attitudes of a certain court toward

a particular memorial’s content and setting. To

correct this, the Court should overrule Lemon and

pronounce an objective Establishment Clause test

that produces predictable results that are consistent

with our nation’s history and tradition.

III. This Court should articulate an Establishment Clause standard defined by a libertybased principle and rooted in our nation’s

history and tradition.

The First Amendment’s text enunciates principles

to protect liberty by linking three pairs of corollary

rights separated by semicolons: free exercise of

religion and freedom from the establishment of

religion; free speech and free press; and peaceable

assembly and right of redress to the government for

grievances. See U.S. Const. amend. I. Each pair of

rights works together.

When read collectively, “the common purpose of

the Religion Clauses is to secure religious liberty.”

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313

(2000) (internal quotes and citation omitted). The

Constitution achieves this goal by guaranteeing the

freedom to approach and respond to one’s faith (or

lack thereof) as directed by conscience. The

15

Constitution limits the power of the government to

interfere with that freedom, because a governmentsponsored and supported church, with its

corresponding authority to demand tribute or coerce

participation in a religious exercise, violates an

individual’s liberty of conscience.

This liberty-based principle is evident in the views

expressed by James Madison and his contemporaries

who were directly engaged in the debates yielding the

Religion Clauses. See, e.g., Edwards v. Aguillard, 482

U.S. 578, 605–606 (1987) (Powell, J., concurring);

Engel v. Vitale, 370 U.S. 421, 428, 431–432 nn.13–16,

436 n.22 (1962); Everson v. Bd. of Educ., 330 U.S. 1,

12, 33–34 (1947). In arguing against the imposition of

a state tax levied to support a church, Madison’s

foundational point highlights how the Free Exercise

Clause and the Establishment Clause work in tandem

to protect religious liberty:

Because we hold it for a fundamental and

undeniable truth, “that religion, or the duty

which we owe to our Creator, and the manner

of discharging it, can be directed only by reason and conviction, not by force or violence.”

Everson, 330 U.S. at 63–72 (reproducing Madison’s

Memorial and Remonstrance against Religious

Assessments). The First Amendment’s authors thus

enunciated a cohesive understanding of both the Free

Exercise and Establishment clauses, properly

interpreted in conjunction with each other, to promote

liberty, not viewed in isolation or pitted against each

other.

16

A liberty-focused inquiry directs courts to

objective questions of compulsion, coercion, and

constraint without requiring an assessment of the

subjective impact and ever-fluid meanings of religious

doctrine, religious symbols, or the impact of evolving

cultural appropriations and understandings. See, e.g.,

Alvarado v. City of San Jose, 94 F.3d 1223 (9th Cir.

1996) (finding a sculpture of the Aztec god,

Quetzalcoatl, permissible because of a lack of cultural

understanding and acceptance of what it was). Rather

than centering on how a religious expression is perceived, a liberty-focused inquiry assesses the autonomy of the observer. When an observer is accorded the

freedom to ignore, avoid, reject, and disagree with a

religious acknowledgement or expression, it is an

exercise of free will and religious liberty that should

be celebrated, whether the author of the acknowledgement is the government or a private person.

A liberty-based principle does not strike down a

civic acknowledgement of religion unless the

acknowledgment threatens to establish an official

religion or forces or coerces participation or direct

financial support for religious exercises. This principle recognizes that all three branches of government

have long embraced the public acknowledgement and

accommodation of religion, particularly in the nation’s

early years. The Framers’ acts illuminate a cohesive

theory of constitutional interpretation. And these acts

“must not be dismissed as the relic of a time when our

Nation was less pluralistic than it is today.” Town of

Greece, 572 U.S. at 579 (rejecting arguments that the

Founder’s acceptance of the “decidedly Christian

nature” of historical legislative prayers are no longer

relevant).

17

This Court has held that a proper theory of the

Establishment Clause must welcome these historical

practices and understandings along with their

contemporary counterparts, not dismiss them. The

Court has noted that “the Establishment Clause must

be interpreted ‘by reference to historical practices and

understandings.’” Town of Greece, 572 U.S. at 576

(quoting Allegheny, 492 U.S. at 670 (Kennedy, J.,

concurring and dissenting in part)).

As this Court has recognized, “[a]ny test the Court

adopts must acknowledge a practice that was

accepted by the Framers and has withstood the

critical scrutiny of time and political change.” Ibid.;

see also School Dist. of Abington Twp. v. Schempp,

374 U.S. 203, 294 (1963) (Brennen, J., concurring)

(“[T]he line we must draw between the permissible

and the impermissible is one which accords with

history and faithfully reflects the understanding of

the Founding Fathers.”). Consequently, any practice,

acknowledgement, or accommodation that comported

with the Establishment Clause as practiced by the

Founding Fathers does so now as well.

And any modern practice, acknowledgement, or

accommodation that poses no greater threat of

establishing a religion than its historical counterparts

does not violate the Constitution either. In situations

where the type of practice or expression at issue was

not clearly permitted or forbidden at the Founding,

historical analogies can be used. For example, in

Allegheny, Justice Kennedy noted that “[i]f Congress

and the state legislatures do not run afoul of the

Establishment Clause when they begin each day with

a state-sponsored prayer for divine guidance offered

18

by a chaplain whose salary is paid at government

expense, I cannot comprehend how a menorah or a

crèche . . . can be invalid.” 492 U.S. at 665 (Kennedy,

J., concurring and dissenting in part).

This does not suggest that a practice that is

otherwise unconstitutional is permitted simply

because it is old. Rather, a practice does not violate

the Establishment Clause when history demonstrates

that the act poses no credible danger of establishing a

religion, based on the Founders’ understanding of that

term. As this Court explained when validating

recurring government participation in an explicitly

religious act:

In light of the unambiguous and unbroken

history of more than 200 years, there can be

no doubt that the practice of opening

legislative sessions with prayer has become a

part of the fabric of our society. To invoke

Divine guidance on a public body entrusted

with making the laws is not, in these

circumstances, an “establishment” of religion

or a step towards establishment; it is simply a

tolerable acknowledgement of beliefs widely

held among the people of this country. As

Justice Douglas observed, “[w]e are a religious

people whose institutions presuppose a

Supreme Being.”

Marsh v. Chambers, 463 U.S. 783,792 (1984) (quoting

Zorach v. Clauson, 343 U.S. 306 (1952)).

This Court in Town of Greece rebuked the

suggestion that Marsh is an “exception” to a

principled jurisprudence. 572 U.S. at 575

19

(acknowledging that “Marsh is sometime described as

‘carving out an exception’”). The Court explained that

“Marsh must not be understood as permitting a

practice that would amount to a constitutional

violation if not for its historical foundation.” Id. at 576.

Rather, history is a guide to demonstrate the

Founders’ understanding and proves that civic

acknowledgements and accommodations of religion

that do not limit individual liberty do not violate the

Establishment Clause. Id. at 584–91 (simply

witnessing a legislative prayer with which the

observer disagrees is not coercive because

“[o]ffense . . . does not equate to coercion”); accord Elk

Grove Unified School Dist. v. Newdow, 542 U.S. 1, 44

(2004) (O’Conner, J., concurring) (“[T]he compulsion

of which Justice Jackson was concerned . . . was of the

direct sort—the Constitution does not guarantee

citizens the right to entirely avoid ideas with which

they disagree.”).

This liberty-based principle, illuminated by

history, provides two limiting standards: the

Government violates the Establishment Clause when

it: (1) forces or coerces individuals to “support or

participate in any religion or its exercise;” or (2)

“give[s] direct benefits to religion in such a degree that

it in fact establishes [that is, creates] a state religion

or religious faith, or tends to do so.” Allegheny, 492

U.S. at 659–60 (Kennedy, J., concurring and

dissenting in part) (internal quotations omitted).

Below, Amici outline these two standards using

non-exhaustive examples of areas of historical practice or concern, and legal precedent to demonstrate

20

their application. Amici then apply these standards to

the facts of this case.

A. The government cannot limit individual

liberty by forcing or coercing participation in any religious exercise.

The first liberty-based principle addresses the

primary evils that the Establishment Clause was

designed to avoid: religious exercise or professions of

faith made “by force of law,” Lee v. Weisman, 505 U.S.

577, 640 (1992) (Scalia, J., dissenting), and forced

abandonment of particular religious beliefs to qualify

for certain public “duties, penalties, privileges, or

benefits,” McDaniel v. Paty, 435 U.S. 618, 639 (1978).

One of the hallmarks of a religious establishment

is the government forcing or coercing participation or

attendance at purely religious activities, or requiring

citizens to take religious oaths to hold public office.

See, e.g., Lee, 505 U.S. at 640 (Scalia, J., dissenting);

accord Allegheny, 492 U.S. at 664 (Kennedy, J.,

concurring and dissenting in part); Town of Greece,

572 U.S. at 608 (Thomas, J., concurring). Nations with

established churches punished citizens for “such

things as speaking disrespectfully of the views of

ministers of government-established churches,

nonattendance at those churches, expressions of nonbelief in their doctrines, and failure to pay taxes and

tithes to support them.” Everson, 330 U.S. at 9. The

Establishment Clause was created to avoid such

abuse of legal force to proscribe religious belief or

practice. Ibid.

21

A liberty-based analysis focuses on the autonomy

of the individual. When government action does not

force an individual to engage in religious exercise,

make a profession of faith, or abandon a certain belief,

individual religious liberty is not compromised in this

respect. An individual is not coerced by a civic

acknowledgement of religion provided the person is

not required to affirm that acknowledgment or

conform his or her behavior in acquiescence.

For example, passive observers of (1) a display,

(2) currency incorporating religious expression,

(3) religious expression during an inauguration

prayer, (4) recitation of the Pledge of Allegiance, or

(5) a call for prayer by public officials in response to a

national tragedy, may experience psychological

aversion but—absent other factors—their right to

believe what they will and practice religion (or not) as

they see fit is not compromised. See, e.g., Allegheny,

492 U.S. at 664 (Kennedy, J., concurring and

dissenting in part) (“No one was compelled to observe

or participate in any religious ceremony or activity.”).

An individual’s voluntary decision to avoid a civic

acknowledgement is properly protected as a respect

for freewill and a demonstration of individual

religious liberty.

Under this first liberty-based principle, the

Establishment Clause is violated when the government forces or coerces individuals to actively support

or participate in a religious exercise. It is also violated

when the government conditions a public benefit on

the support or abandonment of a particular religious

belief. An absence of those factors strongly suggests

the government is not establishing a public religion.

22

B. The government cannot limit religious

liberty by giving direct benefit to

religion to such a degree that it creates a

state religion or institutes a particular

creed.

The Establishment Clause was created in direct

response to European powers forcing individuals to

pay taxes or tithes to a certain church or religious

group. Forced tribute to promote and support a

religious exercise is a distinct mechanism that

European countries and early American colonies and

states used to give impermissible direct benefit to a

state-favored religious sect. Everson, 330 U.S. at 8.

Indeed, it was a Virginia tax to support teachers of the

Christian religion that prompted Madison to publish

his Memorial and Remonstrance. Edwards, 482 U.S.

at 606 (Powell, J., concurring).

But the Establishment Clause is not violated

when the government merely allows religious

institutions and people equal access to funding as part

of a general “public benefit.” Trinity Lutheran Church

v. Comer, 137 S. Ct. 2012, 2024 (2017) (allowing

church to access a government grant to increase safety

on playgrounds on the same basis as similarlysituated community organizations). Neither is it

violated “where a government aid program is neutral

with respect to religion, and provides assistance

directly to a broad class of citizens who, in turn, direct

government aid to religious [entities] wholly as a

result of their own genuine and independent private

choice.” Zelman v. Simmons-Harris, 536 U.S. 639, 652

(2002); accord, e.g., Zobrest v. Catalina Foothills Sch.

Dist., 509 U.S. 1, 8 (1993) (“[G]overnment programs

that neutrally provide benefits to a broad class of

23

citizens defined without reference to religion are not

readily subject to an Establishment Clause

challenge.”); Witters v. Wash. Dep’t of Servs. for the

Blind, 474 U.S. 481, 489 (1986) (state aid program

that funds religious entities only through individual

choice “works no state support of religion prohibited

by the Establishment Clause”). Granting equal access

to public benefits irrespective of faith promotes the

exercise of liberty and the full civic engagement of

religious institutions and individuals, and thus is not

of Establishment Clause concern.

Aside from taxes or forced tithes, another form of

direct benefit is government promotion of distinct

religious tenets which place the government’s weight

behind an obvious effort to convert a citizen’s beliefs

toward a particular religion. See Allegheny, 492 U.S.

at 659–60 (Kennedy, J., concurring and dissenting in

part). There may be circumstances where a

government action falls short of forcing individual

participation, but the weight of the state is

intentionally and obviously positioned to influence or

pressure the beliefs of the individual. For example,

observing legislative prayer is not coercive, but the

government’s exposing citizens to a prolonged pattern

of legislative prayers that denigrate nonbelievers,

seek conversion, or threaten damnation may violate

the Establishment Clause. See Town of Greece, 572

U.S. at 583. While a citizen’s religious liberty is not

compromised by the government merely acknowledging religion or religious ideas, an obvious attempt to

convert individuals to a specific religious belief can be

of constitutional concern.

24

Yet, objection to religious expression that an

entity or person represents to be true, in and of itself,

does not constitute an effort to convert nor is it a

violation of the Establishment Clause. See Town of

Greece, 572 U.S. at 589 (plurality). Pluralistic

societies cannot function without tolerance of

conflicting views. “Adults often encounter speech they

find disagreeable” in our country, which allows robust

debate and the opportunity to learn from others’

perspectives. Ibid. Based on the historical record and

this Court’s precedent, the Establishment Clause

cannot be violated “any time a person experiences a

sense of affront from the expression of contrary”

viewpoints, of the religious or non-religious variety.

Ibid.

In sum, a proper focus on individual liberty

prevents the government from granting direct

financial aid for the purpose of supporting religious

exercise. Likewise, it limits the ability of the

government to interfere with the exercise of

conscience and the freedom to accept or reject a

personal understanding of the Divine and any

corresponding duty owed thereto.

C. Applying the liberty-based principle

here, the Bladensburg Memorial does not

constitute an establishment of religion.

This case is well within the confines established

by a liberty-based approach to the Establishment

Clause. The Bladensburg Memorial is a passive

display that does not violate the Constitution.

25

Because a liberty-focused inquiry necessarily

examines the potential impacts on Respondents’

individual liberty to participate or decline to

participate in religious exercises, Amici’s proposed

test requires scrutiny of how the Bladensburg

Memorial affects Respondents. Respondents’ beliefs

and sincere objections warrant this Court’s respect.

But, without discounting Respondents’ subjective

offense, the Memorial does not force their

participation in any exercise of religion whatsoever.

First, Respondents are free to disagree with any

message conveyed by the Memorial without fear of

government reprisal. And their disagreement with a

perceived message is not enough to violate the

Establishment Clause. See Allegheny, 492 U.S. at 664

(Kennedy, J., concurring and dissenting in part)

(“Passersby who disagree with the message conveyed

by [such] displays are free to ignore them, or even to

turn their backs, just as they are free to do when they

disagree with any other form of government speech.”).

Second, the presence of a war memorial shaped

like a cross does not provide such direct benefit to a

particular faith that it tends to lead to the

establishment of a state church. Nearly 100 years of

history demonstrates that a war memorial shaped in

a manner widely recognized to symbolize selfless

sacrifice does not in fact establish a religion. As the

plurality in Buono recognized when discussing a

cross-shaped military memorial, “[p]lacement of the

cross on Government-owned land was not an attempt

to set the imprimatur of the state on a particular

creed. Rather, those who erected the cross intended

simply to honor our Nation’s fallen soldiers.” 559 U.S.

at 715.

26

Removing the Bladensburg Memorial would not

further Respondents’ religious liberty. It would only

show disrespect for the brave servicemembers the

cross was meant to honor. Further, it would be

“interpreted by some as an arresting symbol of a

Government that is not neutral but hostile on matters

of religion and is bent on eliminating from all public

places and symbols any trace of our country’s religious

heritage.” Id. at 726 (Alito, J., concurring) (emphasis

added).

In particular, removing the Memorial’s arms—as

the Fourth Circuit suggested—would “create the very

kind of religiously based divisiveness that the

Establishment Clause seeks to avoid.” Van Orden, 545

U.S. at 704 (Breyer, J., concurring). Because the

Bladensburg Memorial’s existence does not implicate

the liberty-based concerns underlying the First

Amendment’s Religion Clauses, as outlined above,

and because the Memorial’s defacement would signal

religious hostility, this Court should reverse the

Fourth Circuit’s judgment.

***

Establishment Clause analysis under the

Lemon/endorsement test has devolved into a

“jurisprudence of minutiae,” Allegheny 492 U.S. at

674 (Kennedy, J., concurring and dissenting in part),

that has left each memorial’s constitutionality up to

“judicial predilections,” Van Orden, 545 U.S. at 697

(Thomas, J., concurring). This “Court’s precedent

raises the concern that, either in appearance or in

fact, adjudication of Establishment Clause challenges

turns on judicial predilections” alone. Ibid. This

uncertainty puts Amici in the untenable position of

27

choosing how to honor the fallen based on the

application of one or more inconsistently-applied tests

and the unpredictable and ever-changing subjective

feelings and emotions of passersby.

Accordingly, the Court should overrule Lemon and

replace it with a liberty-based principle that is guided

by our nation’s history. The test should protect

individuals from the government forcing them to

participate in or directly finance religious exercise,

and from being subjected to the creation of a

government-established religion. But the test should

not result in the complete banishment of any religious

language or symbolism—including language or

symbolism that someone might associate with

religion—from the public square.

28

CONCLUSION

The judgment of the Fourth Circuit Court of

Appeals should be reversed.

Respectfully submitted,

KRISTEN K. WAGGONER

JOHN J. BURSCH

DAVID A. CORTMAN

Counsel of Record

JONATHAN A. SCRUGGS

RORY T. GRAY

BRETT B. HARVEY

NATHANIEL BRUNO

ALLIANCE DEFENDING

FREEDOM

440 First Street NW, Suite 600

Washington, D.C. 20001

(202) 393-8690

JONATHAN A. SCRUGGS

RORY T. GRAY

BRETT B. HARVEY

NATHANIEL BRUNO

ALLIANCE DEFENDING FREEDOM

440 First Street NW, Suite 600

Washington, D.C. 20001

(202) 393-8690

DECEMBER 2018

H. WOODRUFF TURNER

JENNA M. LORENCE

WESLEY A. PRICHARD

K&L GATES LLP

K&L Gates Center

210 Sixth Ave.

Pittsburgh, PA 15229

(412) 355-6478

REES LLOYD

Attorney, General

Counsel

AMERICAN LEGION

NEWPORT HARBOR

POST 291

215 15th Street

Newport Beach, CA

92663

(951) 867-1551

Attorneys for Amici Curiae

1a

APPENDIX

DESCRIPTION OF AMICI AND THEIR PARTICULAR

INTERESTS

Major General Patrick H. Brady (United

States Army, retired) is a recipient of the Medal of

Honor—the highest award for military valor that can

be given to a member of the United States Armed

Forces. He received the Medal of Honor for

conspicuous gallantry and intrepidity in action at the

risk of his life, above and beyond the call of duty, in

the Vietnam War. Indeed, General Brady is credited

with over 2,000 combat missions, in which he and his

crew rescued over 5,000 severely wounded soldiers.

He has been regarded as America’s most decorated

living veteran. General Brady views the cross as a

symbol of selfless service, valor, and the giving of

one’s life for others. As such, it is often used to

recognize honorable military service. General Brady

himself was awarded a Distinguished Service Cross

and six Distinguished Flying Crosses for his

courageous service, each of which includes the

emblem of an actual cross:

2a

Distinguished Service

Cross1

Distinguished Flying

Cross2

General Brady strongly believes it would be

absurd for a court, or anyone else, to hold that

military medals like these violate the Constitution,

simply because they are granted by the federal

government and may cause alleged offense to

someone who subjectively perceives such medals of

valor to convey some sort of religious message. He

believes just as fervently it is absurd to conclude the

Constitution requires the defacement or removal of

crosses honoring fallen veterans at war memorial

sites, like the Bladensburg Memorial.

Patriot Outreach provides compassionate tools

and services that help veterans develop personal

coping strategies to achieve victory over PTSD, and

works to instill in veterans the conviction that their

lives remain necessary to the survival of others

suffering from PTSD and suicidal thoughts. Patriot

Outreach has distributed more than 250,000 separate

https://commons.wikimedia.org/wiki/File:Army_distinguished

_service _ cross_ medal.png (last accessed July 18, 2018).

2

https://commons.wikimedia.org/wiki/File:Dfc-usa.jpg (last

accessed July 18, 2018).

1

3a

coping resources online and serves more than 2,000

veterans per year through in-person volunteer work

and group activities. Patriot Outreach is attuned to

the reality that veterans suffering from PTSD

experience particularly severe, deleterious reactions

when symbols of America or military service are

disrespected or defaced, and expect that any action to

remove the Bladensburg Memorial would likely cause

at least some veterans who suffer from PTSD to

experience severe episodes of very stressful emotional

trauma. Moreover, Patriot Outreach is involved in the

process of erecting two separate memorials to

veterans on public property: the Parkville Veterans

Memorial in Parkville, Missouri, and the General

Hays Veterans Memorial in Hays, Kansas. Patriot

Outreach needs clarity regarding what symbols,

designs, and words may be included as part of these

memorials if they hope to avoid a potential federal

lawsuit. Considerations include whether it is

constitutionally

permissible

to

commemorate

veterans and their sacrifice by incorporating a cross,

or a Bible verse (with or without attribution to Jesus),

or a symbol or phrase associated with some other

religious book or leader. Specifically, Patriot

Outreach desires to include an entrance plaque to the

General Hays Veterans Memorial that reads:

“‘Greater love hath no man than this, that a man lay

down his life for his friends.’— Jesus.” But Patriot

Outreach is currently chilled in its efforts to proceed

because of the potential litigation and uncertainty

associated with attempting to use any symbol or

phrase honoring valorous military service that could

theoretically be perceived by someone as conveying a

4a

religious message. Patriot Outreach seeks clarity in

the law that will permit it to fully honor veterans with

memorials in ways it determines most meaningful for

communicating gratitude for their military service.

Casper J. Middlekauf American Legion Post

173 based in Hays, Kansas is the local American

Legion post in that community, comprised of veterans

who are committed to mentoring youth and

sponsoring

wholesome

programs

for

their

development, advocating patriotism and honor, and

supporting active duty military members and other

veterans (as well as their families). Post 173 has over

300 members. The Society of 40 Men & 8 Horses

Voiture 1543 based in Hays, Kansas is the local

chapter in that community of a broader fraternal and

charitable honor society of American veterans. It was

chartered to promote the well-being of veterans and

their families (including widows, widowers, and

orphans), and to actively participate in charitable

endeavors in the community (such as through its

nurse training and child-welfare programs). It has 28

members. The Edwin A Shumacher Marine Corps

League, Detachment 740 based in Hays, Kansas is

the local chapter in that community of the Marine

Corps League, bringing together United States

Marine Corps veterans for the purposes of

camaraderie and fellowship in order to preserve the

traditions and promote the interests of the Marine

Corps. It has eighteen members. These three groups

are participating together with Patriot Outreach in

the process of creating the General Hays Veterans

Memorial. Like Patriot Outreach, they are in a state

5a

of uncertainty as to whether their desired design that

includes a well-recognized statement by Jesus (that

there is no greater expression of love than for a man

to lay down his life for his friends) will be considered

constitutionally permissible or will lead to oppressive

litigation. These organizations are therefore also in

need of clear rules and guidelines governing allowable

content for new memorial displays.

American Legion Newport Harbor Post 291

based in Newport Beach, California is the local

American Legion chapter in that community, which

focuses its mission on serving the various needs of

veterans (through many projects, and the donation of

over $100,000 per year to veterans in financial need),

protecting children and youth, and defending

traditional patriotic American values. Post 291 is the

largest active American Legion post in the United

States, with over 4,000 wartime veteran members,

and an additional 3,000 members of the Sons of the

American Legion or the Auxiliary. Uniquely, Post 291

operates its own Defense of Veterans Memorials

Project, protecting memorials “where they are, as

they are” against desecration by individuals and

organizations allegedly offended by the sight of a

cross or other symbol that may have religious

significance in addition to its significance for honoring

veterans. Post 291 was actively involved in the

successful fights to preserve the Mojave Desert

National Veterans Memorial and the Mt. Soledad

National Veterans Memorial, both of which contain

crosses as part of their commemoration of veterans.

Post 291 seeks clarity in the law to avoid the need to

6a

expend precious time and resources defending

memorials that should not be considered

controversial. It also seeks clarity in the law to

extinguish the fear it currently has regarding

whether memorials it is planning to construct on city

property to honor the service of veterans, and a

veterans cemetery it is actively engaged in trying to

establish in Orange County, California, will provoke

lawsuits if crosses or other elements that may have a

religious connotation in addition to their significance

for commemorating military service are included.

Father Vincent Capodanno Memorial

Catholic War Veterans Post 1974 based in Liberty,

Missouri is the local post of the Catholic War

Veterans in that community. Its mission is to serve

veterans physically, mentally, and spiritually,

without regard to their individual characteristics.

Catholic War Veterans is one of only three faith-based

Veterans Service Organizations chartered by the

federal government. Members of Post 1974 believe

strongly that, in the context of the Bladensburg

Memorial, the cross reflects the selfless sacrifice of

those who served and gave their lives in WWI. Post

1974 is adamantly opposed to the removal of the

Bladensburg Memorial.

Combat Veterans for Congress PAC supports

the election of veterans for Congress who are

dedicated to reining in government spending,

protecting the freedoms provided Americans by the

U.S. Constitution, and who have actively

demonstrated their wiliness to “go into harm’s way”

to protect and defend teammates engaged in combat.

7a

It supports the election of combat veterans who are

committed to the free enterprise system and a strong

national defense, and who will endorse teaching U.S.

history and the Founding Father’s core values in

educational institutions. Combat Veterans for

Congress PAC’s leadership strongly opposes

removing the Bladensburg Memorial because doing so

would disrespect the service, appreciation, and

remembrance of combat veterans nationwide.