November 28, 2011 Colonel Nicholas F.

Marano, USMC Commanding Officer Marine Corps Base Camp Pendleton Camp Pendleton, California 92055 Re: Christian Cross Erected at Camp Pendleton in Violation of Constitution

Colonel Marano: I am writing to alert you to our serious concern regarding a recent incident at Marine Corps Base Camp Pendleton. As you are aware, on November 11, 2011, a thirteen foot cross (hereinafter the Pendleton Cross) was erected on top of a hill at Camp Pendleton. I write on behalf of the legal center of the American Humanist Association, a national nonprofit organization with over 10,000 members and 20,000 supporters across the country, including many in California. The mission of the AHAs legal center is to protect one of the most fundamental principles of our democracy: the constitutional mandate requiring separation of church and state, embodied in the Establishment Clause of the First Amendment.1 The legal center been asked to intervene in this matter by the Military Association of Atheists and Freethinkers, an organization which represents the interests of nontheistic members of the United States military such as atheists, agnostics, and humanists. I understand that you have received a letter dated November 18, 2011, from the American Center for Law and Justice, a conservative activist Christian group founded by Pat Robertson. In that letter, the ACLJ asserts that the erection and continued presence of the Pendleton Cross on federal property does not violate the Establishment Clause. As I will explain below, this conclusion is incorrect and you would be very ill-served to rely on it. Were you to do so and refuse to remove the Pendleton Cross, you would be in violation of the Constitution you have sworn to uphold and defend and would be subject to suit to compel you to honor that oath. Generally speaking, the Supreme Court has ruled that any governmental action which touches upon religion, if it is to be permissible under the Establishment Clause, must not advance . . . religion. County of Allegheny v. ACLU, 492 U.S. 573, 590 (1989). The
1

The very first sentence of the Bill of Rights mandates that the state be secular: Congress shall make no law respecting an establishment of religion. This provision, known as the Establishment Clause, build[s] a wall of separation between church and State. See Reynolds v. United States, 98 U.S. 145, 164 (1878).

government may not promote or affiliate itself with any religious doctrine or organization . . . [or] discriminate among persons on the basis of their religious beliefs. Id. Courts pay particularly close attention to whether the challenged governmental practice either has the purpose or effect of endorsing religion. Id. at 591. Endorsement includes conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. Id. at 593. Within this general legal framework requiring that the government remain secular in its policies and actions, the Supreme Court has had occasion to consider cases involving religious monuments on public land. In doing so, the Court has never upheld the constitutionality of a cross monument on public land.2 Lower federal courts have directly addressed the constitutionality of supposed war memorial cross monuments on public land, however, and have found that they violate the Establishment Clause. See Trunk v. City of San Diego, 629 F. 3d 1099 (9th Cir. 2011).3 Please note that the jurisdiction of the Ninth Circuit Court of Appeals includes California and that the Trunk courts analysis therefore would be controlling for any federal court hearing a case related to the Pendleton Cross. The court in Trunk rejected the argument that a cross labeled as a war memorial is in fact patriotic and nationalistic, not religious. Id. A cross is the preeminent symbol of Christianity and an attempt to label it as a war memorial does not change this. Id. A cross is not a broadlyunderstood . . . symbol of military service, sacrifice and death; instead, it carries an inherently religious message and creates an appearance of honoring only those servicemen of that particular religion. Id. at 1111-12. In addition, unlike the Pendleton Cross, the Mount Soledad cross at issue in Trunk was surrounded by secular displays honoring military service. Even given this somewhat mitigating context, however, the court concluded that cross memorial was a predominantly religious symbol and therefore unconstitutional. Id. at 1110. In passing, the court noted that there is little doubt that [a state] would violate the Establishment Clause if it allowed a private group to place a permanent unadorned twelve-foot cross on public property without any contextual or historical elements that served to secularize the message conveyed by such a display. Id. at 1111. Even though the court did not doubt that the [cross memorial was] intended, at least in part, to honor the sacrifices of nations soldiers, it concluded that this intent, however, is insufficient to render the Memorial constitutional. A cross memorial sends a message of religious endorsement, not simply secular memorialization. Id. at 1118. This strong message of endorsement [of religion] and exclusion [of non-Christians] . . . suggests that the government is so connected to a particular religion that it treats that religions symbolism as its own, as universal. Id. at 1125. The Court concluded that [t]his message violates the Establishment Clause. Id. I understand that Camp Pendleton has attempted to distance itself from the cross by stating that it was erected by private individuals acting solely in their personal capacities. The Supreme Court has made clear, however, that permanent monuments displayed on public property typically represent government speech even when such monuments are not erected by the
2

In fact, in the only case directly to address a cross on public land that was characterized as a war memorial, the Supreme Court upheld the governments decision to transfer the property on which the cross stood to private ownership in order to lessen Establishment Clause concerns. See Salazar v. Buono, 130 S. Ct. 1803 (2010). 3 See also American Atheists v. Duncan, 616 F.3d 1145 (10th Cir. 2010).

government itself but instead are privately financed and donated. Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1132-1133 (2009). The Summum Court reiterated the bedrock constitutional principle that such [g]overnment speech must comport with the Establishment Clause. Id. at 1131-1132. As discussed above, the Pendleton Cross does not do so. I would like to note, as the Ninth Circuit Court of Appeals did in Trunk, that the removal of a cross is [i]n no way . . . meant to undermine the importance of honoring our veterans . . .[;] there are countless ways that we can and should honor them, but without the imprimatur of stateendorsed religion. Trunk at 1102. In short, a Christian cross cannot and does not represent all soldiers and, if erected as a monument on government land, violates the Constitution. We respectfully request that you immediately remove the Pendleton Cross and prevent any future efforts to erect a similar religious monument by any person. Please notify us in writing about the steps you are taking to end this constitutional violation and avoid any potential litigation. Sincerely,

William J. Burgess Appignani Humanist Legal Center American Humanist Association