Amicus Curiae Brief — McCreary County v. American Civil Liberties Union of Ky.

, as

Supreme Coun, US

rilEeED

No. 03-1693 DEC 8- 2004

OFFICL OF THE CLERK _

In The

Supreme Court of the Anited States

Sl

MCCREARY COUNTY, KENTUCKY, et al.,

Petitioners,

V.

AMERICAN CIVIL LIBERTIES UNION

OF KENTUCKY, et al.,

Respondents.

S

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

¢

BRIEF OF THE AMERICAN LEGION AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

+

PHILIP B. ONDERDONK, JR. KELLY SHACKELFORD

THE AMERICAN LEGION Counsel of Record

700 N Pennsylvania St. HIRAM S. SASSER III

Indianapolis, Indiana LIBERTY LEGAL INSTITUTE

46204-1172 903 18th Street, Suite 230

Plano, Texas 75074

(972) 423-3131

Counsel for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

Ee HF RE IE sciiescviicescncvcccunsteneimtocesanincniniies ii

INTEREST OF AMICUS CURIAE.............cccccccccceeeseeees

Ns ie 8 | sy nr

ITE sutiedincipnensndeveittamentense iseasiaphiaimlaiesiinion -

I. America’s war memorials honoring the sacri-

fice of millions deserve protection..................... 2

A. Religious imagery is an important part of

American military culture......................66 3

B. Lower federal courts have abused this

Court’s Establishment Clause jurispru-

dence to unnecessarily remove war memo-

rials by misusing the endorsement test ..... 7

C. Without protection from this Court, count-

less veterans memorials will come under

fire in the courts, dishonoring the memory

of those that gave their lives for a cause

greater than themselves and dishearten-

ing the millions of war veterans that find

solace and understanding in such memori-

I aia eels paasiciatiananemedialindinigsniniibonbariii 9

Il. This case represents an opportunity for this

Court to affirm that acknowledgment of relig-

ion as worthy of appreciation and as a source

of public good does not rise to the level of en-

dorsement that violates the Establishment

A tela nldcian indi nid lerainadidanindaninemisianaiiine 15

A. The Establishment Clause should not be

used as a tool to crush the aspirations and

hopes of those who long for an eternal

purpose for the sacrifice of so many........... 16

il

TABLE OF CONTENTS - Continued

Page

B. Recognizing religion as a positive social

force does not violate the endorsement

BBE... «0000v000cceesdeunnscesesniasuieuneaennnannnnn 17

CONC LAUIIMI oc eceseccescusecescccsscessneiaee 19

ill

TABLE OF AUTHORITIES

Page

CASES

Buono v. Norton, 371 F.3d 543 (9th Cir. 2004).......0..0000000... 7

Capitol Square Review and Advisory Bd. v. Pinette,

a ecseuecsescouues 15, 16

Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct.

i snusetsuusbcnoces 6, 7, 16

Eugene Sand & Gravel, Inc. v. City of Eugene, 558

P2d 338 (Or. 1976), cert. denied, 434 U.S. 876

i ssutuubenonusbsovecsooce 5,8

Gonzales v. North Township of Lake Country,4 F.3d ~

a unnnacccuecs 8

Jewish War Veterans v. United States, 695 F. Supp.

ES Ee 8

Lemon v. Kurtzman, 403 U.S. 602 (1971).........0.00.00.cccccee. 7

Lynch v. Donnelly, 465 U.S. 668 (1984) ....................eeeeee 7

Separation of Church & State Comm. v. Gity of

Eugene, 93 F.3d 617 (9th Cir. 1996) ......................2..... 6,8

Texas v. Johnson, 491 U.S. 397 (1989).....0000. 0. eee. 14

FEDERAL REGULATION

EE 4

OTHER AUTHORITIES

Alexis de Tocqueville, Democracy in America

(Henry Reeve Translation, revised and corrected,

a espuatutuccouscosoocosece 5

INTEREST OF AMICUS CURIAE'

Amicus is The American Legion, chartered by Congress

in 1919 as a patriotic, mutual-help, war-time veterans

organization. The American Legion is a community service

organization which now numbers nearly 2.7 million mem-

bers — men and women — in nearly 14,000 American Legion

Posts worldwide, including Puerto Rico, France, Mexico and

the Philippines. Since its inception, the American Legion

has maintained an ongoing concern and commitment to

veterans and their families. The Legion was instrumental

in the creation of the U.S. Veterans Bureau, now known as

the Department of Veterans Affairs, and has continued to

be an advocate for veteran’s rights. In 1935, the American

Legion established Boys State for the advancement of

democratic and patriotic ideals to counter the Fascist

inspired Young Pioneer Camps.

The American Legion continues its work today

helping veterans survive economic hardship, secure

government benefits, and promoting social stability and

well-being for those that have honorably served our

Nation’s common defense. The Legion is dedicated to

preserving American values, promoting patriotism and

encouraging self-less service and sacrifice among the

Nation's youth. In short, the American Legion seeks to

honor the sacrifice for our country of those who have gone

before us, support those who continue to sacrifice for our

* The parties have consented to the filing of this brief. Their letters

of consent have been filed with the Clerk of this Court. Pursuant to this

Court’s Rule 37.6, none of the counsel for the parties authored this brief

in whole or in part and no one other than amicus or its counsel contrib-

uted money or services to the preparation and submission of this brief.

country today and prepare those who will be called to

sacrifice for all of us in the future.

¢

SUMMARY OF ARGUMENT

This case presents an opportunity for this Court to

protect public displays of religious imagery and preserve

our Nation’s veterans memorials. Religious imagery has

permeated American military culture throughout the

history of the United States. Through veterans memorials

and the religious imagery that marks so many memorials,

the people of this Nation find solace and meaning for the

sacrifice of our sons and daughters and are inspired by an

eternal hope for the future of this country.

Lower federal courts have misused the endorsement

test to destroy veterans memorials bearing religious

imagery. Hecklers have successfully misused the endorse-

ment test to remove any religious reference in the public

square, doing great damage to this Nation’s veterans

memorials. This Court should protect public acknowl-

edgement of religion and preserve our Nation’s veterans

memorials, which strive to honor the sacrifice of our sons

and daughters and give meaning for such sacrifice and an

eternal hope for generations to come.

.

ARGUMENT

I. America’s war memorials honoring the sacri-

fice of millions deserve protection.

For more than two hundred and twenty-five years,

millions of Americans have sacrificed their lives for their

country, their brethren, and their God. Their memory will

long endure, etched in granite and marble, chiseled with a

permanence that echoes their valiant lives. Each man and

woman who fought our nation’s-wars and gave their lives

in service is remembered in local, state and national war

memorials, including those unknown soldiers who find

their only recognition in the Tomb of the Unknowns,

forever solemnly guarded, honored with a wreath’ laying

ceremony, with a simple inscription capturing their lives

and their death —- “Here Rests In Honored Glory An Ameri-

can Soldier Known But To God.” (Tomb of the Unknowns,

Arlington National Cemetery).

A. Religious imagery is an important part of

American military culture.

The American landscape is laden with monuments

and memorials of granite, marble and metal, invoking

religious imagery, honoring those who sacrificed their lives

for the rest of us. For many who have sacrificed their sons

and daughters at the altar of freedom, such religious

imagery serves as rallying points similar to that advanced

by General Douglas MacArthur in 1962 in an address

accepting the Thayer Award at West Point. “Duty, Honor

Country. Those three hallowed words reverently dictate

what you ought to be, what you can be, what you will be.

They are your rallying points: to build courage, when

courage seems to fail; to regain faith when there seems to

be little cause for faith; to create hope, when hope becomes

* The wreath laying ceremony has ancient Greek religious origins.

See <http://www.warmemerialsnsw.asn.au/laurel.cfm>.

forlorn.” General MacArthur went on to remind the Corp

of Cadets “The soldier, above all other men, is required to

practice the greatest act of religious training — sacrifice. In

battle and in the face of danger and death, he discloses

those divine attmbutes which his Maker gave when he

created man in his own image. No physical courage and no

brute instinct can take the place of the Divine help which

alone can sustain him.”

Religion, in some form, has always permeated mili-

tary culture. Soldiers represent the cross-section of Amer-

ica, and the armed forces have been where cultural

boundaries melt away and divides are overcome. Thus, the

armed forces truly are the great melting pots of America,

unified by common themes of American culture, including

religious themes. Evidence of these common themes

appear in war memomnals, but also appear in military

decorations, such as the Navy Cross and the Distinguished

Flying Cross. Specifically, the Combat Medical Badge and

the Expert Field Medical Badge are officially described as

bearing a “greek cross.” Decorations, Medals, Ribbons and

Similar Devices, 69 Fed. Reg. 45114 (2004). The nature of

armed combat for the survival of our civilization and

’ Cadets at West Point are required to memorize this portion of

General MacArthur's speech, which is recorded for the cadets in Bugle

Notes, a collection of required memorized knowledge each cadet must

master Included in Bugle Notes is the song, The Corps. The opening for

the song, required to be memorized by every cadet, is “The Corp!

Bareheaded salute it, With eyes up, thanking our God.” Each fourth-

class cadet (freshman) or plebe is required to recite this song in its

entirety, including the reference “thanking our God” whenever called

upon to do so by upper-class cadets. In addition, cadets are required to

memorize a traditional academy song, entitled Benny Havens, much

depicted in the movie The Long Gray Line, which includes the line

“Until on our last battlefield the light of heaven, shall glow.”

5

national heritage requires us to search within ourselves

and culture to identify the common threads that bind us

together.

For more than two hundred years, one of those com-

mon threads is that we are a peculiarly religious people.

See generally Alexis de Tocqueville, Democracy in America

(Henry Reeve Translation, revised and corrected, 1829).

That does not mean that every person who served or

serves on the front lines has a religious dispensation, and

certainly soldiers possess divergent views of religion and

embrace different faiths. War monuments reflect this

religious theme in part to honor the motivation of so many

who fought and died for this nation’s salvation, and in part

to give purpose and meaning to the sacrifice of the youth

of our nation for those who continue to mourn their loss,

when such a purpose is not readily apparent. See Eugene

Sand & Gravel, Inc. v. City of Eugene, 558 P.2d 338 (Or.

1976), cert. denied, 434 U.S. 876 (1977) (“a monument with

a cross is an appropriate symbol for sacrifice by men who

gave their lives for their country in time of war”).

The United States fought the Revolution to secure,

among other things, religious freedom. The abolitionist

movement, which gave meaning and purpose to many

soldiers serving in the Army of the Republic, was a dis-

tinctly religious movement. The First World War saw the

sacrifice of millions of young men, with little readily

discernable meaning behind their death. In fact, in

Europe, war memorials honoring those of the First World

War usually feature a Cross of Sacrifice, in light of the

desperation of the Europeans, especially the English, to

find some reason for the terrible loss of life. World War II

was fought as a righteous and desperate struggle to

overcome and defeat a menacing and oppressive evil that

6

threatened to engulf entire continents. The Cold War saw

the Evil Empire devoid of religion as the Communist State

sandblasted Russian religious heritage out of the public

square and out of the hearts of desperate men seeking to

cling to something, but left with nothing but the State.

The evils of slavery, fascism and brutal socialism were

overcome by a people motivated at least in part by a deep

conviction of the soul that might does not make right and

that the eternal required them to sacrifice for the good of

others. Such motivation deserves, at the very least, public

acknowledgment.

While the intellectual elite may lay siege to such

notions with the pen from the comfortable confines of the

Ivory Tower, it has been the sacrifice of countless Ameri-

cans willing to die for something greater than themselves

that has secured that very freedom for their critics. As

Justice O'Connor aptly articulated, “[i]t is unsurprising

that a Nation founded by religious refugees and dedicated

to religious freedom should find references to divinity in

its symbols, songs, mottoes, and oaths. Eradicating such

references would sever ties to a history that sustains this

Nation even today.” Elk Grove Unified Sch._Dist. v.

Newdow, 124 S.Ct. 2301, 2322 (2004) (O’Connor, J.,

concurring) (emphasis added).*

* Judge O’Scann.ain captured the sentiments of the founding of our

Nation and subsequent spirit of the importance of religion in public life

in his concurring opinion in Separation of Church & State Comm. v.

City of Eugene, 93 F.3d 617 (9th Cir. 1996).

7

B. Lower federal courts have abused this

Court’s Establishment Clause jurispru-

dence to unnecessarily remove war memo-

rials by misusing the endorsement test.

A cross placed in a public park in 1934 by the Veter-

ans of Foreign Wars in memory of those who died in World

War I was ordered to be removed by the Ninth Circuit. See

Buono v. Norton, 371 F.3d 543 (9th Cir. 2004). In Buono,

the war memorial was designated as a war memorial to

World War I by federal law. See id. at 549. The court

declared that it was following the effects prong of Lemon uv.

Kurtzman, 403 U-S. 602 (1971) and Justice O’Connor’s

endorsement test to strike down the war memorial. See id.

at 548. Yet, Justice O’Connor stated that “[flacially reli-

gious references can serve other valuable purposes in

public life as well.” Newdow, 124 S. Ct. at 2322 (O’Connor,

J., concurring). In fact, Justice O’Connor reminded the

courts that she has consistently held “that such references

‘serve, in the only ways reasonably possible in our culture,

the legitimate secular purpose[] of ... encouraging the

recognition of what is worthy of appreciation in society.”

Id. (citing Lynch v. Donnelly, 465 U.S. 668, 692-93 (1984)

(O’Connor, J., concurring)).

In Buono, the court of appeals employed flawed

analysis that is not uncommon among federal courts. The

court relied on the appearance of endorsement, improperly

reducing the endorsement test to subjective form, trans-

forming the test into a “heckler’s veto,” a result Justice

O’Connor specifically cautioned against. Newdow, 124

S. Ct. at 2321 (O’Connor, J., concurring).

Other courts have likewise misapplied the endorse-

ment test to eradicate veterans memorials designed to

recognize “what is worthy of appreciation in society,”

8

namely the military service and personal sacrifice of

veterans for something greater than themselves. See, e.g.,

Jewish War Veterans v. United States, 695 F. Supp. 3 (D.

D.C. 1988) (a cross cannot serve as a veterans memorial

without violating the endorsement test); Gonzales v. North

Township of Lake Country, 4 F.3d 1412 (7th Cir. 1993). In

Separation of Church & State Comm. v. City of Eugene, 93

F.3d 617 (9th Cir. 1996), the court of appeals relied on the

endorsement test, but failed to properly analyze the facts

from the reasonable person standard required by the test.

In fact, Eugene is the epitome of Establishment

Clause catastrophe and a perfect example of why Estab-

lishment Clause jurisprudence must be constantly revis-

ited by this Court. Acknowledgement is not the same as

endorsement. The veterans memorial at issue, a cross, was

“first condemned, then twice approved, and now once

again condemned, all by well-intentioned judges seeking to

apply the Establishment Clause of the United States

Constitution.” Jd. at 620 (O’Scannlain, J., concurring). In

fact, the veterans memorial in Eugene was originally

vindicated for the very reason that it was a veterans

memorial, and thus held a secular purpose, despite the

fact that it bore a cross. See Eugene Sand and Gravel, Inc.

v. City of Eugene, 558 P.2d 338, 344 (Or. 1976), cert. de-

nied, 434 U.S. 876 (1977) (“an appropriate ceremony was

conducted by the American Legion to dedicate the cross as

the ‘Veteran’s War Memorial Monument’”).

9

C. Without protection from this Court, count-

less veterans memorials will come under

fire in the courts, dishonoring the memory

of those who gave their lives for a cause

greater than themselves and disheartening

the millions of war veterans who find sol-

ace and understanding in such memorials.

There are numerous veterans memorials throughout

the country that invoke religious imagery. For example,

the Argonne Cross in Arlington Cemetery, erected in part

through the efforts of the Argonne Unit American Legion,

sits among nineteen pine trees that represent the Argonne

Forest where so many American servicemen gave their

lives. A simple inscription on the base of the cross reads:

“IN MEMORY OF OUR MEN IN FRANCE 1917 1918.”

The Canadian Cross of Sacrifice, also among the

graves in Arlington Cemetery, is a twenty-four foot gray

granite cross that dominates its surroundings with a

bronze sword affixed to the cross. The Cross of Sacrifice

was dedicated on Armistice Day, 1927, honoring those

Americans, with great internal conviction, who joined the

Canadian Armed Forces to fight in World War I before the

United States joined the war. Subsequently, the monu-

ment was modified to honor those that served in World

War II and the Korean War.

10

Photo provided by Arlington National Cemetery <http://www.

arlingtoncemetery.org/visitor_information/Canadian_Cross.htm]>

11

In fact, in Arlington Cemetery alone, there are nu-

merous inscriptions of religious acknowledgement perma-

nently displayed on public property. Chaplain’s Hill

Monument bears the inscription, “May God Grant Peace

To Them And To The Nation They Served So Well.” The

Confederate War Memorial bears the inscription, “Victrix

Causa Diis Placuit Sed Victa Caton,” which means “The

Victorious Cause was Pleasing to the Gods, But the Lost

Cause to Cato” and depicts a woman extending a laurel

wreath from ancient Greek religion to her fallen son. The

Spanish-American War Monument bears the inscription,

“TO THE GLORY OF GOD AND IN GRATEFUL RE-

MEMBERANCE OF THE MEN AND WOMEN OF THE

ARMED FORCES WHO IN THIS CENTURY GAVE

THEIR LIVES FOR OUR COUNTRY THAT FREEDOM

MIGHT LIVE.” The Space Shuttle Challenger Memorial

bears the inscription, “... put out my hand, and touched

the face of God.”

The Altar of the Nation, a national war memorial for

all American war dead, is located in Rindge, New Hamp-

shire at the Cathedral of the Pines. “It is comprised~—of

stones donated as tributes from all United States Presi-

dents since and including Harry Truman. It also contains

stones from each of the fifty states and four territories and

from Commanding Officers of America’s Armed Forces, all

incorporated into an Altar that symbolizes the unity and

strength of grateful people.” In 1962, the Fraternal Order

of Eagles donated a Ten Commandments monolith, which

is prominently displayed in the Cathedral of the Pines.

“The Presidents of the United States and each of the

5 °

<www.cathedralpines.com>.

12

governors of the 50 states and four territories have had

their tributes to the American War Dead placed at the

Altar of the Nation on Memorial Day.” In 1967, the

Women’s Memorial Bell Tower was dedicated at the

entrance to the Cathedral of the Pines and was the first

veterans monument in the United States specifically

honoring women who gave their lives for their country.

This incredible war memorial is even more fascinating as

a living memorial reminding all Americans of the great

pluralism and common bonds we all share.’

This war memorial features a very large Ten Com-

mandments display and a religious altar, and is among the

Cathedral of the Pines, and bears a cross and crucifix in

prominent locations. Yet, secular and various faith groups

are apparently not offended. In fact, a veritable cross

section of America used the war memorial in 2004 for

meetings, memorial services, and for a Meditational

Labyrinth Walk. Veterans of Foreign Wars, the 101st

Airborne Division, Daughters of Scotia, Masons, United

Church of Christ, Greek Orthodox Divine Liturgy, Baha’i

Faith, a Baptist church, the United States Air Force band,

the Daughters of the American Revolution, the Assembly

of God, Christian Scientists, the Loyal Order of the Moose,

the International Order of the Rainbow for Girls, and

others made use of the facility in 2004.

* Id.

* The real beauty of this memorial is its truly pluralistic appeal to

people of many faiths and secular organizations. Nothing captures its

living memorial quality better than the brief schedule of events posted

on the website, which is included in the appendix of this brief. The

schedule itself is a powerful testament to the pluralism of this Nation,

and the common bonds sealed with the sacrifice of our youth in time of

war.

13

The prominent displays of a crucifix and the cross at

the Altar of the Nation have not deterred the Annual

Jewish Service being conducted there for the past fifty-

eight years. The religious imagery of this living war

memorial serves as a unifying force for our culture, and

indeed our Nation. Yet, many of the same arguments being

proffered to ban the display of the Ten Commandments in

McCreary County would equally ban the Ten Command-

ments and Altar of the Nation in the Cathedral of the

Pines. This cannot be allowed to happen.

In the capitol, the Peace Monument stands as a forty-

four foot high monument in the circle to the west of the

Capitol at Pennsylvania Avenue and First Street, N.W.

This war memorial was erected in 1877-78 to commemo-

rate the naval deaths at sea during the Civil War. Among

the ancient Greek classical figures, Mars, the god of war

and Neptune, the god of the sea are depicted, as well as

the figure Victory, holding a laurel wreath. The Peace

Memorial in Gettysburg bears the inscription, “With

Firmness In The Right As God Gives Us To See The Right

— Lincoln.” Countless small towns and communities across

the country have erected veterans Memorials that bear

religious inscriptions or invoke religious imagery. The City

of Chicago dedicated the City Hall Memorial Plaque, a

World War I and II memorial that bears the image of an

angel. Blooming Grove, Texas built a Korean and Vietnam

War Memorial that bears an inscription from the Book of

Ecclesiastes. Such is the nature of thousands of veterans

memorials across the country.

For some courts, these war memorials must be torn

down. It is disheartening and distressing to think that

Arlington Cemetery must be gutted because there are

those who are offended by the religious imagery. If we

14

cannot even acknowledge this country’s religious heritage

in public to honor those who sacrificed their lives for

something greater than themselves, how can we ever as a

Nation look into the face of youth to call upon it to once

again return to the alter of freedom and offer the same

sacrifice given by generations before? Apparently, the

heckler would prefer the sound of the beep, beep, beep of a

crane signaling the collapse of the Cross of Sacrifice at

Arlington Cemetery, rather than the respectful silence of

those who approach the Cross, remember our fallen

soldiers, and say a prayer for them and our country.

The wound grows deeper when such a heckler success-

fully challenges war memorials of those who died to

protect the very freedom the heckler allegedly invokes to

sandblast the memorial from history. At the same time,

the veteran is called upon to avert his eyes when one

burns the flag that symbolizes for many the cause for

which brave men and women gave their lives.” The flag,

like war memorials, maintains a vigilant watch over our

Nation, reminding each of us of our national heritage and

common bonds. Indeed, our National Anthem, inspired by

the flag, as noted by Chief Justice Rehnquist in Texas v.

Johnson, captures the significance of the flag and reli-

gious imagery in our national identity in its first and

* Perhaps for veterans memorials, just as for the American Flag,

there are those who identify the intrinsic value of such symbols that

give them pause before rendering them disposable and devoid of eternal

meaning. See Texas v. Johnson, 491 U.S. 397;>436-39 (1989) (Stevens,

J., dissenting); Jd. at 421-435 (Rehnquist, C.J., dissenting, O’Connor, J.,

joining).

* Id. at 423.

15

second verses.’ The Court should provide protection to the

war memorials of this country, as they stand vigilantly

guarding the sacred honor of those who made the ultimate

sacrifice for this Nation and give comfort and purpose for

those they left behind.

Il. This case represents an opportunity for this

Court to affirm that acknowledgment of relig-

ion as worthy of appreciation and as a source

of public good does not rise to the level of en-

dorsement that violates the Establishment

Clause.

The key to the endorsement test being properly applied

is the reasonable observer standard consistently articulated

by Justiee O’Connor. See Capitol Square Review and Advi-

sory Bd. v. Pinette, 515 U.S. 753, 781 (1995). This standard

guides courts to avoid the “heckler’s veto,” and adjudicate

that mere acknowledgement of religion does not rise to the

* The second verse, not often sung, is imbued with religious

imagery and required to be memorized and recited along with the first

verse by cadets at the United States Military Academy.

Oh, thus be it ever when freemen shall

stand between their loved homes and

wild war’s desolation;

Bless’d with vict’ry and peace, may the

heav’n-rescued land Praise the pow’r

that hath made and preserv’d us a na-

tion!

Then conquer we must, when our cause

it is just. And this be our motto: “In God

is our trust!”

And the Star-Spangled Banner in tri-

umph shall wave, O’er the land of the

free and the home of the brave.

16

level of an Establishment Clause violation. See Newdow,

124 S. Ct. at 2321 (O’Connor, J., concurring) (citing Pinette,

515 U.S. at 780 (“There is always someone who, with a

particular quantum of knowledge, reasonably might per-

ceive a particular action as an endorsement of religion”)

(emphasis in original)).

A. The Establishment Clause should not be

used as a tool to crush the aspirations and

hopes of those who long for an eternal pur-

pose for the sacrifice of so many.

Veterans memorials exist to honor those who sacri-

ficed their lives for something greater than themselves

and serve as rallying points for survivors and others to

remember their sacrifice and find solace, peace and reason

for such loss. Religious imagery serves to acknowledge

that most people served by the memorial rest their eternal

hopes on God or some religious sentiment. No memorial,

however brilliantly conceived, can represent the senti-

ments of all those it means to serve. But, the Establish-

ment Clause should not be misused as a tool to reduce

such sentiments to the lowest common denominator of

sadness and gloom. Memorials exist not just to convey that

the youth perished, end of story. Most people crave more

than that; they crave an eternal hope that those who

perished did not die in vain. While freedom is quickly

extinguished without those who are willing to lay their

lives on the line for something greater than themselves,

the personal comfort and enjoyment derived from so called

“freedom”-esque adventures such as viewing online por-

nography or watching the protected speech of a topless

dancer offer little warmth for the soul of the loved ones of

those who made the final sacrifice.

oe e

17

Our homes, our communities, our Nation demand that

we elevate the cause of those who gave their lives for the

rest of us to the highest platitudes of our cultural tradi-

tion. As a Nation, we cannot ignore the differences that

define the uniqueness of American life, including religious

diversity and the lack of religious sentiment among some.

However, we cannot allow that diversity to swallow-up our

uniquely American religious heritage, grounded in histori-

cal roots and fertilized with the sacrifices of our most

treasured belongings, our sons and daughters.

Those who came before died for a reason. It is not

sufficient to cast their sacrifice upon the trash heap of

history by refusing to give an eternal significance to the

brutality inflicted by war upon generations. We owe it to

those who sacrificed their lives and those who mourn to

acknowledge the common thread that binds each genera-

tion of Americans who have fought and died for the pres-

ervation of this great Nation and give eternal significance

to the sacrifice made that the temporal occasionally

regards dismissively as rather pointless. In a day and age

when protesters call out that our brave soldiers die daily

in Iraq for nothing but oil, it is incumbent upon the courts

to give some leeway to those communities and governmen-

tal bodies that seek to inspire in citizens and future

generations a reason to make the ultimate sacrifice.

B. Recognizing religion as a positive social

force does not violate the endorsement test.

The acknowledgement of religion as an important

historical factor in the development of American culture,

as viewed by the reasonable observer, imbued with all

knowledge, is not an Establishment Clause violation.

Further, giving acknowledgment to religion or a particular

18

religious sentiment does not, on its own, give the reason-

able observer cause to feel disenfranchised. Indeed, praise

of one does not equate to a denigration of another. To

acknowledge the good in a particular religious sentiment

does not render the countless other sentiments or lack of

sentiment for anything in particular insignificant, and

cannot diminish the perceived worth of any individual. For

the Court to rule that mere acknowledgement of a reli-

gious sentiment as a public good is impermissible would do

nothing more than silence forever the graves of those who

sacrificed themse'ves for God and Country, for whom the

memorial speaks its eternal message.

The American Legion beseeches this Court to carefully

weigh its words in a decision in this case. Federal courts

across the country are doing great harm through their

misuse of Establishment Clause jurisprudence. This Court

should restrain them. The great and ultimate sacrifice of

the sons and daughters of this Nation from the founding to

the present hour in Iraq demands that this Court tread

cautiously when its decision may have a far-reaching and

eternal impact in how we honor their sacrifice and try, as a

Nation, to find comfort and solace in their remembrance.

The veterans memorials—ef-this country were not lightly

constructed, nor were they intended as advancements of a

particular creed or sentiment. Instead, they represent this

Nation’s best efforts to give meaning to a cause that

cannot alone be sustained by empty rhetoric and talk of

abstract freedom. Veterans gave their best to this Nation

so that it might not perish from the Earth, but rather long

endure. At the very least, this Court cam and should honor

their sacrifice by preserving the remnants of their mark on

us all, the veterans memorials.

+

19

CONCLUSION

This Court should reverse the decision below and

affirm that public acknowledgement of religion and its

importance in our society is not endorsement. In addition,

this Court should be mindful of the travesty of veterans

memorials being bulldozed in the name of heckler’s justice,

and secure for such veterans memorials protection from

overzealous courts.

Respectfully submitted,

PHILIP B. ONDERDONK, JR. KELLY SHACKELFORD

THE AMERICAN LEGION Counsel of Record

700 N Pennsylvania St. HIRAM S. SASSER III

Indianapolis, Indiana LIBERTY LEGAL INSTITUTE

46204-1172 903 18th Street, Suite 203

Plano, Texas 75074

(972) 423-3131

Counsel for Amicus Curiae

App. 1

Cathedral of the Pines

Schedule of Events

2004 Services

The Cathedral is available for Weddings, Memorial Ser-

vices, Religious Services, Baptisms, Bar and Bat Mitzvahs,

Services for Fraternal Groups, Veterans Groups, and

Baccalaureate Services. -——~-

The Cathedral Hill Top House will be open during the

winter months (November through April) by reservation

for meetings, weddings and services.

Call prior to scheduled services for confirmation of sched-

ule.

APRIL

April 11 — Sunday — 5:30 AM — Easter Sunrise Service

with the Rev. Benjamin Swan, Pastor Monadnock Full

Gospel Church, officiating

MAY

May 2 — Sunday —- 11:00 AM — Loyalty Day Service.

Veterans of Foreign Wars and Ladies Auxiliary of

District 5, West Swanzey, NH. Clarence Nelson, arranging.

May 9 — Sunday — 11:00 AM — Cornerstone Outreach

Ministries. Blessing of the Bikers. The Joseph Delio,

officiating

May 15 — Saturday — 10:00 AM — 101st Airborne Divi-

sion, Rededication Ceremony. Robert M. Delia, CSM, U.S.

Army (Ret.), arranging

App. 2

May 16 — Sunday — 10:00 AM — United Commercial

Travelers, Memorial Service. Ron Rugiauge, arranging.

~ 1:00 PM — Fraternal Order of the Eagles. 42nd

Annual Memorial Service. Joe Markevich, Secretary,

Connecticut State Aerie, arranging.

May 22 — Saturday — 9:00 AM — Southern New England

Conference “Pathfinders.” Pastor Bob Saunders,

officiating.

— 1:00 PM — WAVES. Memorial Service. Barbara Rice,

arranging

May 23 — Sunday —- 1:00 — 3:00 PM — Meditational Laby-

rinth Walk - Carol Renwick and Yvonne Dunetz, arrang-

ing.

May 27 — Thursday — 4:00 PM — Baccalaureate Service.

The Winchendon School, Winchendon, MA. Marilyn

LaBelle, arranging.

May 30 — Sunday — 2:00 PM — Annual Memorial Day

Observance for all] American War Dead.

JUNE

June 6 — Sunday — 3:00 PM — Daughters of Scotia.

Scottish Service. The Rev. Dr. Gerald G. Wyrwas, officiat-

ing. Ethel M. Wyrwas, arranging.

— 4:00 PM —- Central Association, Massachusetts

Conference, United Church of Christ. Worship Ser-

vice. Jane Clarke, arranging.

— 6:00 PM —- Baccalaureate Service. Mascenic Re-

gional High School, New Ipswich, NH. Cheryl Bellow,

arranging.

App. 3

June 9 — Wednesday — 9:30 AM — Masters Christian

Academy. Worship Service. Lori Applegarth, arranging.

June 20 — Sunday — 11:00 AM — Charles Street AME

Church, Dorchester, MA. Worship Service. Sarah Claytor,

arranging.

— 2:00 PM — Third Annual Wedding Vow Renewal

Service. Sponsored by Cathedral of the Pines. To schedule

your renewal of vows, please call (603) 899-3300. Sandy

Pastor, Director of Programs arranging.

June 27 — Sunday — 11:00 AM — Annual Masonic Ser-

vice (55th year). Sponsored by Altemont Lodge #26 &

Grand Lodge of NH. Nils Bergstrom, arranging.

— 3:00 PM — New England Grange Family Service.

Sponsored by New Hampshire State Grange. Chaplain

Hugh Clark, officiating and arranging.

JULY

July 4 — Sunday — 11:00 AM — Greenfield Congrega-

tional Covenant Church, of Greenfield, NH. Worship

Service. The Rev. Daniel Osgood, officiating and arrang-

ing.

July 11 — Sunday — 10:00 AM —- Greek Orthodox Divine

Liturgy. Chris Booras, arranging.

— 3:00 PM —- Polish National Catholic Church.

Eastern Diocese Vesper Service. The Very Rev. Joseph

Soltysiak, assisting and arranging.

July 18 — Sunday — 10:00 AM — Church of Christ of

Brookline, NH. Worship Service. Dr, David W. Smith,

officiating.

App. 4

— 3:00 PM —- Baha’i Faith of Peterborough, NH

Coordinated by the Baha’i’s of the Monadnock Region.

Julie Swan, arranging.

July 24 — Saturday — 1:00 PM — Concord Baptist

Church, Boston, MA. Kate Days, arranging.

July 25 — Sunday —- 10:00 AM — 3:00 PM - Cathedral

Gardens Tour. A guided tour of the beautiful Cathedral

Gardens sponsored by Cathedral of the Pines. Barbara

Hadsell, arranging

AUGUST

August 1 — Sunday — 10:00 AM - First Congregational

Church of Rindge and First Church in Jaffrey,

U.C.C. Combined Worship Service. The Rev. James Mel-

horn and William Beardslee, arranging.

- 11:00 AM - The New England Pythians Knights

& Sisters. Memorial Service. Larry Ackerson, arranging.

— 3:00 PM — Annual Jewish Service. (58th year.)

Rabbi Seth L Berstein, D. Min., arranging.

— 7:00 PM —- Fleur de Lis Camp, Fitzwilliam, NH.

Episcopal Evening Worship. Elizabeth Young, Director,

arranging.

August 5 - Thursday — 9:00 AM — National Havurah

Summer Institute 2004. Christine Oliger, arranging.

August 7 - Saturday — 1:00 PM — Odd Fellows & Re-

bekahs (52nd year) Memorial Service sponsored by

Massachusetts Rebekah Assembly, IOOF. Barbara

McLaren, arranging.

App. 5

August 8 — Sunday — 10:00 AM — Monadnock Bible

Baptist Church. Worship Service. The Rev. Thomas

Peragallo, officiating and arranging.

~— 1:30 PM — Cranston Senior Guild of Warwick, RI.

Chaplain Mel Levine, officiating. Phyllis Solod, arranging.

August 14 — Saturday — 11:00 AM —- Amaranth Service.

Sponsored by Nashoba Valley Court #13. The Rev. David

Forry, officiating. Clark W. Page, Sr., Royal Patron, ar-

ranging.

August 15 — Sunday — 1:00 PM — Rosicrucian AMORC,

Johannes Kelpius Lodge. Rededication Service. Moses

Debediana, arranging.

— 3:00 PM — North American Spiritualist Confer-

ence. Mary Lou Baumhoff, arranging.

— 4:30 PM — U.S.A.F. Band of Liberty New Eng-

land Winds Woodwind Quintet from Hanscom AFB,

MA. Craig Matta, arranging.

August 21 — Saturday — 11:00 AM — Daughters of the

American Revolution. Service Sponsored by New

Hampshire Society DAR. Chaplain General Mary Lou

James, speaker. Barbara Langley, Conference Chairman,

arranging.

August 22 — Sunday — 3:00 PM - Fitchburg Assembly

of God, Fitchburg, MA. Worshi:: Service. The Rev. Russell

Grant, officiating and arranging.

August 29 —- Sunday — 3:00 PM — Christian Science

Healing and Testimony Service. Don Alusic, arranging.

App. 6

SEPTEMBER

September 6 — Monday, Labor Day — 10:00 AM —- AA

Open Meeting

September 11 — Saturday — 11:00 AM —- Loyal Order of

Moose. 41st Annual Memorial Service. Tom Buck, Secre-

tary, arranging.

- 7:00 PM — Prayer Service in observance of the

“Attack on America,” September 11th, 2001

September 12 —- Sunday —- 1:00 PM -— International

Order of the Rainbow for Girls. Massachusetts Grand

Assembly. Sandra J. Marshall, Supreme Inspector in

Massachusetts, arranging.

September 19 — Sunday —- 11:00 AM — New England

Lions and Lioness Council, Present & Past District

Governors, Memorial Service. Ed Lecius, arranging.

— 1:00 PM - Hospice at HCS. Memorial Service.

Lorraine Bishop, arranging.

September 24 - Friday — 7:30 PM — Elisabeth von

Trapp in concert with Erich Kory, cellist. inside the

Hilltop House. Tickets are $15.00 with limited seating, so

call (603) 899-3300 for yours!

September 26 — Sunday — 11:00 AM — Second Congre-

gational Church, UCC, Wilton, NH. Worship Service.

Deacon Richard Carlson, arranging.

— 3:00 PM - First Baptist Church of Boston.

Worship Service. Deacon Melvin Jennison, officiating and

arranging.

App. 7

OCTOBER

October 2 — Saturday — 6:00 PM —- Blessing of God’s

Creatures large and small! in the St. Francis of Assisi

Garden. Sandy Pastor, arranging.

October 10 -— Sunday — 3:00 PM — Cornerstone Out-

reach Ministries. Worship Service. The Rev. Joseph

Delio, officiating.

NOVEMBER

November 11 — Thursday — 10:45 AM — Veteran’s Day

observance. Rindge Veteran’s Association Honor Guard

and Color Guard.