The Freedom From Religion Foundation submitted an amicus curiae (“friend of the court”) brief to the U.S. Supreme Court on Aug. 4.
The case, Ken L. Salazar, Secretary of Interior v. Frank Buono, deals with a Latin cross, deemed a World War I memorial in the Mojave National Preserve in San Bernadino County, Calif.
The Foundation’s brief highlights the contributions of its many members who were “atheists in foxholes.” The Foundation maintains that war memorials designated by the government to honor veterans “should remain free from religious imagery.” The brief adds: “The myth is false that ‘there are no atheists in foxholes.’ The Foundation’s own membership includes veterans of World War II, the Korean War, the Vietnam War, the Gulf War and current military servicemen and women involved in the U.S. military operations in Iraq and Afghanistan.” The Foundation counted WWI vets among its original membership back in the 1970s.
The cross was first erected on Sunrise Rock in 1934, allegedly on behalf of the Veterans of Foreign Wars, and has been replaced several times. (A Latin cross legally defined as having two arms, one horizontal, one vertical, at right angles to one another.) The cross was originally maintained by the National Park Service. The American Civil Liberties Union sued the Park Service in 2001 on behalf of Frank Buono, a Catholic and retired deputy superintendent at the Preserve. Buono also belonged to a group opposed to putting religious objects on public land.
After a federal judge ruled the cross violated the First Amendment, Congress approved transferring one acre of land around it to the VFW. That was also ruled illegal. (A plywood enclosure now hides the cross from sight.)
After an appeals court upheld earlier rulings, Bush administration lawyers in 2008 appealed to the Supreme Court. As the current Department of the Interior secretary, Ken Salazar is petitioner for the government.
The Foundation’s brief warns that if the appeals court ruling is set aside, “it would set in motion dangerous precedent, which would open the door to countless sham divestitures of public property in order to aid religion (inevitably, the dominant religion).”
The brief was filed by Rich Bolton, with Boardman Law Firm, and by Rebecca Kratz, FFRF’s staff attorney. Stephanie Schmitt, FFRF summer legal clerk, assisted.
The Foundation brief documents the Atheists in Foxholes monument placed by the Foundation in Alabama, and its Atheist in Foxhole award. In an appendix, the Foundation recounts the experiences of several of its members who served in World War II, the Korean War and the Vietnam War. For example, Florida member Larry Townsend was a teenager living in Pearl Harbor when it was bombed in 1941, and joined the Marines: “I was heavily involved in the war from the first minute to the last. I have seen a number of foxholes and I have been an occupant of a few and know for sure that there was at least one atheist in one of them.”
Ken Dunn of California served six years in World War II, including some of the major Pacific battles such as Guadalcanal. During one battle, Ken’s troops suffered 50% casualties. He observed, “deaths were without respect to religious views.” Warren Allen Smith of New York, a veteran of Omaha Beach in 1944, insisted that his dog tags said “None,” and discovered later that the late, great Arthur C. Clarke insisted on the same for his British dog tags.
“Sectarian symbols such as the Latin cross sanctioned by government as war memorials neglect the sacrifices of our non-Christian and non-believing veterans,” the brief asserts.
The brief continues: “Supposed land sales create an incentive for governments and their actors—looking to dodge Establishment Clause violations while still promoting religion—to carve out and sell portions of valuable public land only to groups that it knows will maintain displays conveying inherently religious messages.” Such transfers “give the government a huge loophole through which to escape constitutional violations. . . The obvious remedy, the constitutional solution, was for the VFW to move the cross to the nearby ranch owned by one of its members, not for Congress to swap federal land under the cross for land on the ranch.
“Congressional preference for favored religious speech cannot be sanctioned by manipulation. What if the Freedom From Religion Foundation were to illegally erect a towering ‘THERE IS NO GOD’ sign in the middle of federal property and call it a memorial to recognize ‘atheists in foxholes’ and in the U.S. military? What if offended onlookers sued and Congress responded with emergency steps to effect a land swap solely calculated to ensure the Foundation could continue to advertise its atheistic message surrounded by invaluable public land? No reasonable observer would conclude that this trespassing graffiti or Congress’ actions to promote a ‘no God’ message would therefore be constitutional. The same is true of land swaps that perpetuate religious endorsement.”
In 2002, in the wake of litigation over the cross’ removal, Congress designated the site as a national memorial. Now the government is arguing that the cross is not a religious message but a symbol of remembrance for veterans.
The Foundation’s brief says that even if the court accepts that argument, “this designation cannot overcome the government’s message of Christian endorsement.”
The brief’s appendices include historical background on the “no atheists in foxholes” myth, with examples over the years from Freethought Today that prove it is just a myth.
