Yesterday, the US House of Representatives passed two bills promoting a union of church and state, and sent them to the Senate. The first bill, HR 2070, which passed by 386 to 26, is entitled “World War II Memorial Prayer Act of 2012.” It would require the Secretary of the Interior to install “in the area of the World War II Memorial in the District of Columbia a suitable plaque or an inscription with the words that President Franklin D. Roosevelt prayed with the Nation on June 6, 1944, the morning of D-Day.”
The Secretary is in charge of designing and installing the plaque but “may not use Federal funds. . . but may accept and expend private contributions for this purpose.” I wonder if they’d let FFRF pay to have some language added to the Jefferson Memorial. . .?
Bureau of Land Management Director Robert Abbey opposes this addition: He believes it is a violation of the Commemorative Works Act and “will necessarily dilute this elegant memorial’s central message and its ability to clearly convey that message to move, educate and inspire its many visitors.”
The second bill, HR 290, which passed by a voice vote, is deceitfully named “War Memorial Protection Act.” HR 290 was proposed by U.S. Rep. Duncan Hunter, R-Calif., to overrule the Ninth Circuit decision ruling the Mt. Soledad cross may not stay on public property. Steve Trunk, an FFRF Board and Lifetime Member, spoke about why he sued over the Mt. Soledad cross, on Oct. 8 at FFRF’s 34th national convention in Hartford, Conn., where he received the Atheist in Foxhole Award. His lawsuit before the 9th Circuit U.S. Court of Appeals declared the Mount Soledad cross near San Diego, Calif., an unconstitutional endorsement of Christianity.
Hunter’s explicit intention was to “ensure that Mount Soledad and any other war memorial will withstand these attacks. . .” Attacks? This is a court executing its constitutionally mandated job of upholding our Constitution. Second, Hunter intentionally proposed a law that he knows violates the Constitution — that’s why he passed the law!
In 1803, in Marbury v. Madison, the Supreme Court first declared a law “unconstitutional” and held “it is emphatically the province and duty of the judicial department to say what the law is.” This is part of our system of separate powers. The Constitution is the supreme law of the land and the court interprets that law.
Here’s an example: In 1984, Gregory Lee Johnson burns an American flag at the Republican National Convention in Dallas as a protest. Johnson was arrested and charged with the crime of “the desecration of a venerated object in violation of Tex. Penal Code Ann § 42.09(a)(3). He was convicted, sentenced to one year in prison, and fined $2,000.” Texas v. Johnson, 491 U.S. 397, 400 (1989). The Supreme Court held “the government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea.” Id. at 416. The law Johnson was convicted of breaking was overturned, as were almost 50 other similar laws.
Later that year, Congress responded by passing the Flag Protection Act that made criminals of “Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag.” 18 USC §700. In 1990, the Flag Protection Act reached the Supreme Court in U.S. v. Eichman, 496 U.S. 310 (1990). The Supreme Court declared the law unconstitutional, for the same reasons as in Texas v. Johnson, a new federal law does not make an unconstitutional act constitutional.
HR 290 has no power to make an unconstitutional cross constitutional. This is another piece of pandering, wasteful legislation. You’d think they have better things to do.
Click here to see how your representative voted on HR 2070 and let him/her know how you feel!
Andrew Seidel is the newest member of FFRF’s legal team and our first Constitutional Consultant. He joined FFRF in November and absolutely loves his job.