Amicus Curiae Brief — Duchesne City, Utah v. Summum (No. 07-690)

No. 2.

FI

LED

Iu The

Supreme Court of the Anited

DEC

S

mand

26 2007

F THE CLERK

t COURT, U.S.

DUCHESNE CITY, et al.,

Petitioners,

SUMMUM,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

BRIEF AMICI CURIAE OF THE AMERICAN

LEGION; VETERANS OF FOREIGN WARS OF THE

UNITED STATES; THE MILITARY ORDER OF THE

PURPLE HEART, INC.; THE NON COMMISSIONED

OFFICERS ASSOCIATION; VETERANS OF THE

VIETNAM WAR, INC. & THE VETERANS

COALITION IN SUPPORT OF PETITIONERS

—

PHILIP B. ONDERDONK, JR.

THE AMERICAN LEGION

700 N. Pennsylvania St.

Indianapolis, IN 46204-1172

(317) 630-1224

LAWRENCE M. MAHER

VETERANS OF FOREIGN WARS

OF THE UNITED STATES

34th & Broadway

Kansas City, MO 64111

THOMAS A. O’CONNOR

VETERANS OF THE VIETNAM

WAR, INC. AND THE

VETERANS COALITION

398 Wyoming Ave.

Kingston, PA 18704

KELLY J SHACKELFORD

Counsel of Record

HIRAM S. SASSER, III

ROGER L. BYRON

LIBERTY LEGAL INSTITUTE

903 18th St., Ste. 230

Plano, TX 75074

(972) 423-3131

DANIEL J. MURPHY

National Judge Advocate

MILITARY ORDER OF THE

PURPLE HEART, INC.

National Headquarters

5413-B Backlick Rd.

Springfield, VA 22151-3960

COCKLE LAW BR'EF PRINTING CO

OR CALLCOLLECT (40?) 342-

(800) 295-6964

AQ)

TABLE OF CONTENTS

INTEREST OF AMICIIN THIS CASE

SUMMARY OF THE ARGUMENT

ARGUMENT

I.

IV.

This case is important and the Court

should grant the petition to save current

and future veterans memorials from de-

struction

A. Veterans memorials are a fundamental

element of American history and mili-

tary culture and record those virtues

we hold dear as a people

Allowing the destruction of any veterans

memorial is a dishonor and betrayal to-

ward all who have served and those serv-

ing even now

America’s veterans memorials, honoring

the service and sacrifice of millions, must

be preserved

Veterans memorials donated to the govern-

ment for display is government speech

CONCLUSION

il

TABLE OF AUTHORITIES

Page

Buono v. Kempthorne, 364 F.Supp. 2d 1175

(C.D. Coa a a i eas rscccsssrssccccescees ie

Buono v. Kempthorne, 502 F.3d 1069 (9th Cir.

BOOT ) « ncccde cee E LE blsbesesssescocssssces ey

National Endowment for the Arts v. Finley, 524

SS, GR Ca eer ai ca cc csessnccescsescccees 16

Paulson v. Mt. Seledad Memorial Ass’n, 294

F.3d 1124 (9th Cir. 2002) (en banc).............060.000 7,17

Summum v. Duchesne City, 482 F.3d 1263

Be SS EE

Summum v. Pleasant Grove City, 383 F.3d 1044

(Otay Coa. Soe ee. .,...,.5.......5, 6

United States v. American Library Ass’n, 539

U.S. 194 (2003) ...... PAT eacchenseess... 2 ae 16

INTEREST OF AMICI CURIAE'

The American Legion — The American Legion

is a veterans and community service organization

representing over 2.6 million members. The American

Legion helps veterans survive economic hardship and

secure government benefits. [t works to promote

social stability and well-being for those that have

honorably served our nation’s common defense. And it

strives to ensure that those veterans who have sacri-

ficed their lives for our country are properly remem-

bered in local, state and national veterans memcrials.

The proper resolution of this case is a matter of great

concern to The American Legion because the ruling of

the Tenth Circuit has a detrimental impact on its

ability to honor with veterans memorials those who

have and do serve our nation’s armed forces.

Veterans of Foreign Wars of the United

States (““VFW”) — The VFW is a veterans service

organization representing over 2.3 million members.

The VFW was instrumental in establishing the

Veterans Administration, creating a GI Bill for the

20th century and developing the national cemetery

system. The VFW also fights for the compensation

of Vietnam veterans exposed to Agent Orange and

All counsel of record received notice of amici’s intention to

file this brief at least ten days before this brief was due. Amici

state that no portion of this brief was authored by counsel for a

party and that no person or entity other than amici or their

counsel made a monetary contribution to the preparation or

submission of this brief

2

veterans diagnosed with “Gulf War Undiagnosed

Illnesses.” The VFW helped fund the creation of the

Vietnam Veterans Memorial, the Korean War Memo-

rial, the World War II Memorial and the Women in

Military Service Memorial. This case is of great

concern to the VFW as it threatens the very veterans

memorials the VFW helped create and directly

threatens the erection of like veterans memorials in

the future.

The Military Order of the Purple Heart, Inc.

— The Military Order of the Purple Heart is a non-

profit veterans service organization formed for the

protection and mutual interest of all who have been

awarded the Purple Heart. The Purple Heart is a

combat decoration awarded only those members of

the armed forces of the United States wounded by a

weapon of war in the hands of the enemy. It is, as

well, awarded posthumously to the next of kin in the

name of those who are killed in action or die of

wounds received in action. Composed exclusively of

Purple Heart recipients, the Order is the only veter-

ans service organization composed strictly of combat

veterans. As its work, the Order conducts welfare,

rehabilitation and service work for hospitalized and

needy veterans and their families. The Order is

greatly concerned with the outcome of this case as it

directly affects the future of veterans memorials that

honor those who, like themselves, literally shed their

blood in this nation’s service.

3

The Non Commissioned Officers Association

(“NCOA”) — The NCOA is a veterans service organi-

zation established to enhance and maintain the

quality of life for enlisted personnel in all branches of

the Armed Forces, National Guard and Reserves. It

advocates in the federal legislature on issues that

affect enlisted personnel and their families. It pro-

vides social improvement programs to help enlisted

personnel thrive on active duty, on transition to

civilian life and throughout retirement. The NCOA

also aids often underpaid enlisted personnel in saving

money through merchant program discounts. As the

vast majority of veterans are or were enlisted person-

nel, the NCOA is greatly concerned with the adverse

affect a court decision that threatens veterans memo-

rials will have on those it serves.

Veterans of the Vietnam War, Inc., & The

Veterans Coalition (“VVnW”) — The VVnW is an

international veterans organization dedicated to

assisting U.S. veterans of all wars and all branches of

military service through its programs and services. It

strives to maintain, improve, preserve and defend

the quality of life of all veterans and their families.

VVnW provides transitional housing to homeless

veterans as they attempt to reintegrate into society,

offers psychological and medical care to needy

veterans, and works to educate the public about the

debilitating effects of Post Traumatic Stress Disorder

and Gulf War Syndrome. VVnW opposes any court

ruling that threatens veterans memorials. Such

rulings only add to the difficulties and struggles

already burdening so many veterans as a result of

their military service.

SUMMARY OF ARGUMENT

The precedent established by the Tenth Circuit

lays the foundation for the destruction of all donated

veterans memorials nationwide and chills the erec-

tion of any future memorials. From the United States

Marine Corps War Memorial in Arlington, VA, to the

Vietnam Veterans War Memorial on The Mall in

Washington, DC, to the myriad Spirit of the American

Doughboy WWI memorials like that in Ft. Smith, AR,

this precedent will require all governments, from the

smallest municipality to the Congress itself, to make

an impossible decision: either fail to honor our veter-

ans by any donated monument whatsoever, tear down

those that currently exist, or allow a monument

honoring our veterans and then, upon donation, erect

on the same hallowed ground one that dishonors

them.

The Tenth Circuit’s ruling is flawed in its legal

analysis, as demonstrated by Petitioner, and danger-

ous to veterans memorials in its practical effect.

Failure on the part of this Court to decidedly reverse

the Tenth Circuit will cause great harm and enshrine

its opinion in law. Amici, therefore, representing

millions of veterans nationwide, request this Court

secure and protect the future of our nation’s veterans

)

memorials by granting Petitioners writ of certiorari

and reversing the Tenth Circuit.

¢

ARGUMENT

I. This case is important and the Court

should grant the petition to save current

and future veterans memorials from de-

struction.

The American Legion filed an amicus curiae brief

in McCreary County v. ACLU (Case No. 03-1693)

warning this Court that veterans memorials across

the country would perish if guidance was not issued

to protect them. Amici are dismayed to see this pre-

diction become a stark reality in the Tenth Circuit

with a precedent laid for the circuits remaining.

The Tenth Circuit concluded that a monument

donated to a government entity by a private party

remains the donor’s private speech. See Summum v.

Pleasant Grove City, 383 F.3d 1044, 1048 n.2 (10th

Cir. 2007); Summum v. Duchesne City, 482 F.3d 12638,

1269, 1273-74 (10th Cir. 2007). It also concluded that

the presence of a donated monument in a public area

determines the area’s forum and requires the accep-

tance of any other permanent monument, presumably

until all green space has been filled. See Pleasant

Grove, 383 F.3d at 1050 (“The permanent monuments

in the city park therefore make up the relevant

forum.”); Duchesne, 383 F.3d at 1273-74.

6

This holding, flawed in its legal analysis, is

devastating to veterans memorials. These memorials,

erected to honor our veterans and the wars and

battles in which they fought, account for a massive

number of donated memorials erected in the public

square. Under this precedent, any governmental

entity, from the smallest municipality to the Congress

itself, is presented an impossible choice: tear down its

memorials donated to honor its veterans, requiring

that none be erected in the future, or retain its me-

morials donated to honor its veterans and, upon

request, accept and erect on the same grounds a

monument donated to dishonor them.

The Tenth Circuit has authored a recipe for

chaos. It has, as well, sealed the destruction of those

privately donated veterans memorials within its

jurisdiction and established a precedent that threat-

ens those without. As Judge McConnell, joined by

Judge Gorsuch, lamented in his dissent from the

denial of rehearing, “{e]very park in the country that

has accepted a VFW memorial is now a public forum

for the erection of permanent fixed monuments; they

must either remove the war memorials or brace

themselves for an influx of clutter.” Summum uv.

Pleasant Grove City, 499 F.3d 1170, 1175 (10th Cir.

2007) (McConnell, J., dissenting). Most towns and

cities, out of necessity, will doubtless choose to tear

down their veterans memorials rather than dishonor

them or clutter their public areas.

Without appropriate action by this Court, then,

the destruction of an untold number of veterans

7

memorials is sealed, and the rest fall deeper under

the threatening shadow of a judiciary already proven

hostile toward them. See, e.g., Paulson v. Mt. Soledad

Memorial Ass’n, 294 F.3d 1124 (9th Cir. 2002) (en

banc) (enjoining as unconstitutional a _ veterans

memorial in San Diego, Ca.); Buono v. Kempthorne,

364 F.Supp. 2d 1175 (C.D. Cal. Apr. 8, 2005) (af-

firmed by Buono v. Kempthorne, 502 F.3d 1069 (9th

Cir. 2007)) (enjoining as unconstitutional a veterans

memorial in the Mojave National Preserve).

A. Veterans memorials are a fundamental

element of American history and mili-

tary culture and record those virtues

we hold dear as a people.

From the beginning, millions of Americans have

given honorable service to this nation in its armed

forces, often at cost of their lives. Beginning with the

war against the Barbary Pirates of North Africa, the

first formal war under our nation’s Constitution,

this nation has commemorated the service and sacri-

fice of its veterans through privately donated memo-

rials erected in the public square. Memorials to the

* See The Tripoli Monument, United States Naval Academy,

Annapolis, Md. The Smithsonian Institution Research Informa-

tion System, http//siris-collections.si.edu/search/ (enter the follow-

ing into “Search” box: 75005835; then click “Tripoli Monument”).

8

veterans of the War of 1812,’ the Mexican War,’ the

Civil War,’ the Spanish-American War,° World War I,’

World War II,° the Korean War,’ the Vietnam War™

and the Gulf War" all bear witness to this. Following

* See, e.g., The Battle Monument in Baltimore, Md. The

Historical Marker Database, www.hmdb.org (enter the following

into “Search” box: battle monument Baltimore).

* See, e.g., The Maryland Soldiers Monument of Baltimore,

Md. The Descendants of Mexican War Veterans, www.dmwyv.org/

honoring/baltimore.htm.

° See, eg., The African American Civil War Memorial,

Washington, D.C. The African American Civil War Memorial

Freedoin Foundation, www.afroamcivilwar.org (then click “The

Memorial”); see also Telephone interview with representative of

The African American Civil War Memorial Freedom Foundation,

Washington, D.C., November 10, 2007.

* See, e.g., The Spanish-American War Monument, Arlington

National Cemetery, Arlington, Va. Arlington National Cemetery,

www.arlingtoncemetery.org/visitor_information/Spanish-American_War.

html.

" See, e.y., The Spirit of the American Doughboy, erected in

towns all across the United States. The Spirit of the American

Doughboy, http://doughboy_lamp.tripod.com/id139.html.

* See, e.g., The United States Marine Corps War Memorial,

Arlington, Va. The Smithsonian Institution Research Informa-

tion System, http://siris-collections.si.edu/search (enter the

following into “Search” box: VA000244; then click “The United

States Marine Corps War Memorial”).

* See, e.g., The Korean War Memorial, Pittsburg, Penn.,

VFW Post 764, http://www.vfw764.org/koreanmem.htm.

10

See, e.g.. The Vietnam Veterans Memonal, Washington,

D.C., www.nps.gov/archive/vive/memorial/evolution. htm.

" See, eg., The Persian Gulf War Memorial Bust. The

Smithsonian Institution Research Information System, http://

(Continued on following page)

9

each conflict, following each time we called upon our

own to serve and to die, there arose afterward an

instinctive need to commemorate that service in a

very public and permanent manner. The result un-

waveringly has been a lasting memorial of wood or

stone or metal erected to honor and remember those

who served and those who died.

Our veterans memorials have become ingrained

in our national identity as deeply as any part of our

culture could. When one thinks of Iwo Jima, among

the first images that come to mind is that of five

Marines and a Navy corpsman, battle weary and

ragged, struggling to hoist the Colors atop a craggy,

body strewn Mt. Suribachi, an image captured in

bronze and black granite in a park in Arlington,

Virginia. Thoughts of Vietnam unwaveringly turn to

a long, spare granite wall standing on The Mall in

Washington, D.C., a stark and unchanging roster of

those who died in that war. In numerous towns and

cities across our nation, World War I is forever tied to

their own Spirit of the American Doughboy -— life-size

sculptures of a lone uniformed soldier of the Great

War with arm raised, determinably striding forward.

For many black Americans, reflections on the Civil

War bring to mind the African American Civil War

Memorial, the only national memorial to the black

siris-collections.si.edu/search (enter the following into “Search”

box: NY001479; then click “Persian Gulf War Memorial Bust”).

10

veterans of the war in which the freedom of an entire

people was won.

These memorials, honoring the dead and encour-

aging the living, use words like courage, valor, sacri-

fice, loyalty, bravery, faithfulness, hope, love, duty

and honor. They record events and persons in which

these virtues were seen and lived. They provide

unchanging examples to young and old alike of what

is good and right and honorable. They record the very

history of this nation in metal and stone, providing

those who view them yet another reason to be thank-

ful for the land in which they find themselves and the

Constitution under which they are governed.

Our veterans memorials are a living testimony to

our very identity as a nation and as a people. Nothing

more defines a nation than those times and causes it

has considered worthy of the blood of its sons and

daughters. These memorials commemorate those

times and causes and the people who fought and bied

for them and fight and bleed for them still. This case

presents important questions, and if they remain

unanswered, veterans memorials will perish.

II. Allowing the destruction of any veterans

memorial is a dishonor and betrayal to-

ward all who have served and those serv-

ing even now.

Consider the veterans memorials described in

Section I-A, supra. While varied in form and effect,

and erected in commemoration of different people

11

from different eras, all share two things in common:

they stand in public parks in honor and remembrance

of veterans from their respective wars, and they were

donated by private parties for permanent display in

the public square.”

Accordingly, the ‘Tenth Circuit’s analysis of the

Constitution requires that upon donation and along-

side the Iwo Jima memorial, a monument to the

benevolence of the prison guards of the Bataan Death

March be erected, as well as one to the meritorious

contributions of the kamikaze. Upon donation, per

The United States Marine Corps Memorial (i.e., the Iwo

Jima monument), located in a public park in Arlington, Va., was

donated by individual Marines and friends of the Marine Corp

See The Smithsonian Institution Research Information System,

http://siris-collections.si.edu/search (enter the following into

“Search” box: VA000244; then click “The United States Marine

Corps War Memorial”). The Vietnam Veterans Memorial (i.c., The

Wall), erected on The Mall in Washington, D.C., was donated by

contributions from more than 275,000 individuals. See The

Vietnam Veterans Memorial, Washington, D.C., www.nps.gov/

archive/vive/memorial/evolution.htm. A great number of Doughboys

erected in public parks across the country were donated to their

respective towns by private organizations and civic groups. See

http://members.tripod.com/doughboy_lamp/earlspages/id63. htm!

(click on Anniston, AL, Birmingham, AL, Ft. Smith, AR, ctc.).

And the African American Civil War Memorial, erected in a

public plaza in the heart of Washington, D.C.’s Shaw neighbor-

hood, was donated through private contributions to the Freedom

Foundation of the same name. See The African American Civil

War Memorial Freedom Foundation, www.afroamcivilwarorg (then

click “The Memorial”); see also Telephone interview with repre-

sentative of The African American Civil! War Memorial Freedom

Foundation, Washington, D.C., November 10, 2007.

12

the Tenth Circuit, it is only constitutional that a large

bust of Ho Chi Minh, renowned purveyor of democ-

ratic principles and human rights, be placed on The

Mall along with the Vietnam Veterans War Memorial.

Upon donation, the towns across the country with

World War I Doughboys must also erect a monument

donated to honor the leaders of the Central Powers.

And the Tenth Circuit would find that acceptance of

the donated African American Civil War Memorial

requires acceptance of a donated alabaster sculpture

of a hooded man in white robes bearing the title of

grand dragon.

Battery Park on Manhattan Island, New York, is

replete with donated memorials, veterans and other-

wise. It is also the current home of The Sphere and

Eternal Flame, memorials to the fallen of September

11, 2001. According to the Tenth Circuit, the people of

New York should also be required to accept and erect,

upon the same ground, a monument donated to extol

the virtues of al-Qaida and the vision of its leaders.

Likewise the U.S. Soldiers Monument in Shelby,

Michigan," the Spanish-American War Monument in

Arlington National Cemetery, * the Maryland Soldiers

See The Smithsonian Institution Research Information

System, http://siris-collections.si.edu/search (enter the following

into “Search” box: MI000301; then click “U.S. Soldiers Monument”).

‘* See Arlington National Cemetery, www.arlingtoncemetery.

org/visitor_information/Spanish-Amernican_War.html.

13

Monument in Baltimore, Maryland,” the countless

veterans memorials donated and erected in the public

squares of countless towns by The American Legion,

Veterans of Foreign Wars, the Fraternal Order of

Eagles, etc. — even the Statue of Liberty in New York

Harbor — all are privately donated memorials erected

in the public square. According to the Tenth Circuit,

each of the areas housing these memorials could now

be considered public fora in which any donated

monument espousing protected speech can and must

be displayed regardless of viewpoint.

Exploration and intellectual analysis of the

bounds of our rights and liberties under the Constitu-

tion is good and necessary. Without it, our rights and

liberties would stagnate. The implications of this

ruling, however, are astounding: if some are honored,

their dishonor must be permitted as well. And all

must be honored or none may be honored. This, of

course, defeats the very purpose for the act of honor-

ing, which is to set apart as special and worthy of

consideration a particular person or act or idea. If all

must be similarly set apart, then the act of honoring

loses its meaning. The Court should grant the peti-

tion to preserve veterans memorials now and for the

future.

'’ See The Descendants of Mexican War Veterans, www.

dmwv.org/honoring/baltimore.htm.

14

Ill. America’s veterans memorials, honoring

the service and sacrifice of millions, must

be preserved.

The destruction and chilling of our veterans

memorials is not a viable option. What effect would

the court sanctioned destruction of veterans memori-

als do to the soldier who even now is patrolling the

streets of Baghdad with death at every street corner

and behind every door? What would a headline like

“Court strikes down veterans memorials” do to the

legless Marine in Walter Reed struggling to make

sense of his injuries and put his life back together?

What would it mean to the homeless veteran on the

streets of Chicago? What effect would it have on the

remaining veterans who survived Pearl Harbor and

suffer nightmares even now?

Our veterans memorials serve as unchanging

reminders of who we are as a nation and where we

have been. How else should this be done? In forgotten

books gathering dust on hidden shelves of forgotten

libraries? In motion pictures once watched and put on

the shelf and out of mind? Public memorials are

among the most powerful tools of remembrance

available to the modern world. Each time we see

them, our veterans memorials force us to remember,

if only fleetingly and only for an instant, that there

were those who held the line, that there were those

who answered the call, that there were those who

rose to the task at peril of their lives to give them-

selves to something they deemed worthy of their life.

They force us to remember that the security and

15

prosperity of this nation did not come without a price,

both high and dear, and that its birth and continued

survival has been hard fought and hard won.

Our veterans memorials force us to remember. If

we fail to remember, we forget. And if we forget the

men and the women and the struggles and the vir-

tues our veterans memorials commemorate, what

does that say about us as a people? And what effect

will it have in the future when we call on our own to

don the uniform once more and go in harm's way? The

Court should grant the petition to preserve our veter-

ans memorials, which stand the most to iose in the

wake of the Tenth Circuit's ruling.

IV. Veterans memorials donated to the gov-

ernment for display is government speech.

Veterans organizations, the typical private do-

nors of veterans memorials, do not seek to speak on

their own behalf when donating a veterans memorial.

Instead, organizations such as amici intend to assist

and support the government’s role of honoring those

who served our nation so well. The government never

turns a blind eye during the donation process. On the

contrary, government officials are very involved in the

development and design of the memorials and must

approve the dimensions, design and content of the

memorial. This very selection of memorials for the

governmental display is itself the exercise of govern-

mental authority, and the government ultimately

takes ownership and control of the memorial donated

16

by the organization. See, e.g., United States v. Ameri-

can Library Ass’n, 539 U.S. 194, 208 (2003) (plural-

ity); National Endowment for the Arts v. Finley, 524

U.S. 569, 585-86 (1998).

Veterans take an oath upon entering service to

uphold the Constitution of the United States. It is the

obligation of the United States and their political

subdivisions to honor the sacrifice of those who

preserved them. Veterans organizations and _ indi-

viduals simply assist the government in fulfilling its

role, its duty, to honor those who preserved our free-

dom and our nation. Thus, the thousands and thou-

sands of veterans memorials across the country,

found in almost every city or county, are properly

viewed as government speech for the purpose of

honoring the sacrifice of those who preserved us a

nation.

CONCLUSION

This Court should preserve our nation’s veterans

memorials by granting the writ of certiorari and

reversing the Tenth Circuit. Millions of veterans,

represented by amici, implore it to do so. This Court

may, without question, choose another course. It has

the power to allow the Tenth Circuit’s ruling to stand

and thus the veterans memorials to fall. But if it

does, if after repeated warnings” and in the face of

certain destruction this Court again fails te render

our veterans memorials the protection they deserve,

this nation will walk that course with heads bowed,

not in reverence, but in disgrace, ingratitude and

shame. The Petition should be granted.

Respectfully submitted,

PHILIP B. ONDERDONK, JR.

THE AMERICAN LEGION

iQ0 N. Pennsylvania St.

Indianapolis, IN 46204-1172

(317) 630-1224

LAWRENCE M. MAHER

VETERANS OF FOREIGN WARS

OF ‘THE UNITED STATES

34th & Broadway

Kansas City, MO 64111

THOMAS A. O’CONNOR

KELLY J SHACKELFORD

Counsel of Record

HIRAM S. SASSER, II]

ROGER L. BYRON

LIBERTY LEGAL INSTITUTE

903 18th St., Ste. 230

Plano, TX 75074

(972) 423-3131

DANIEL J. MURPHY

National Judge Advocate

MILITARY ORDER OF THE

PURPLE HEART, INC.

National Headquarters

5413-B Backlick Rd.

Springfield, VA 22151-3960

VETERANS OF THE VIETNAM

War, INC. AND THE

VETERANS COALITION

398 Wyoming Ave.

Kingston, PA 18704

* The American Legion filed an amicus curiae brief in

McCreary County v. ACLU (Case No. 03-1693) warning this

Court that veterans memorials across the country would perish

if guidance was not issued to protect them. See also Paulson v.

Mt. Soledad Memorial Ass’n, 294 F.3d 1124 (9th Cir. 2002) (en

banc) (enjoining as unconstitutional a veterans memorial in San

Diego, Ca.); Buono v. Kempthorne, 364 F. Supp. 2d 1175 (C.D.

Cal. Apr. 8, 2005) (affirmed by Buono v. Kempthorne, 502 F.3d

1069 (9th Cir. 2007)) (enjoining as unconstitutional a veterans

memorial in the Mojave National Preserve).