FFRF Files Friend of the Court Brief in Hotly Contested Cross Case

FFRF Cites “Atheists in Foxholes” in Veteran Memorial Case

The Freedom From Religion Foundation submitted a friend of the court brief to the Supreme Court on Monday, highlighting the contributions of its many members who were “atheists in foxholes.” The case, Ken L. Salazar, Secretary of Interior v. Frank Buono, deals with a Congressional land transfer act to save a Latin cross, deemed a World War I war memorial, in the middle of Mojave Desert Preserve.

Buono, a Catholic previously employed at the Preserve, challenged the presence of a Christian cross, which was placed in the Preserve without permit or permission by the VFW. When courts ruled the cross display on federal land unconstitutional, Congress intervened and agreed to a land swap in order to “save the cross.” Congress exchanged the land under the cross for some land on a ranch owned by a private party. The only documented use of the cross is for Easter services. When the Ninth Circuit Court of Appeals ruled that Congressional act unconstitutional, the government appealed to the Supreme Court.

The brief notes that the Foundation, the largest national association of freethinkers in the country, represents many veterans. About a third of its 42 lawsuits have dealt with religious symbols on government property, giving the Foundation a special interest in the case.

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.

“Federal and state governments have consistently failed to recognize the contributions and sacrifices of ‘atheists in foxholes’ and the actions in this case continue to demonstrate government favoritism toward Christianity over all other faiths and religion over non-religion.”

The 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.

“Congress’ actions designating Sunrise Cross as a national memorial illustrate its failure to recognize America’s increasingly large secular population and to accommodate the changing demographics of the United States,” in which at least 15% of adults identify as nonreligious.

Congressional favoritism toward Christianity “insults and excludes all non-religious and all non-Christian American veterans who have fought and died for our country.”

After noting that the Latin cross atop Sunrise Rock “is a purely sectarian symbol that cannot be viewed as anything other than the preeminent and exclusive symbol of Christianity,” the brief then objects to the sham of a land transfer. “This case comes down to a simple truth: the most effective remedy for an unlawful display on public property is to remove the display.”

The “friendly” brief specifically addresses two decisions by the Seventh Circuit appeals court in Foundation cases. In two instances, after the Foundation filed suit, governments chopped up bites of public land to sell back to the parties which had erected the religious monuments in the first place. “Such remedies do nothing more than provide an environment that is ripe for government manipulation,” the brief contends.

“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.” The brief said land sales or transfers “give the government a huge loophole through which to escape constitutional violations.” The land exchange was a “a cleverly devised subterfuge to disguise seventy years of flagrant constitutional violation.”

Continues the brief:

“The attempt to ‘patch up’ an admitted violation of the Constitution with the shell game of land transfer produces an ugly kludge–an inelegant and overcomplicated solution to a simple problem. 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.”

The brief warned that if the Ninth Circuit were overruled, “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.

“We want to thank Rebecca and our summer legal clerk, Stephanie Schmitt, for their herculean efforts, dedication and enthusiasm in writing a brief that so eloquently represents the views and interests of our membership,” said Dan Barker and Annie Laurie Gaylor, Foundation Co-President. “Supreme Court rules now bar the inclusion of a nonattorney’s name on the amicus brief itself, so we recognize and thank Stephanie here.”

Freedom From Religion Foundation

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