The Union-Tribune reported last week that atheist groups are complaining about a pair of crosses in Camp Pendleton serving as a memorial to fallen soldiers. The Pentagon will decide whether the memorial may remain, and litigation is highly likely if it does.
Such a lawsuit would misconstrue the meaning of the Establishment Clause, which provides that government “shall make no law respecting an establishment of religion.” Here are some facts relevant to such a lawsuit:
1) The government did not place the crosses there; individual soldiers did. This is critical because the Establishment Clause prohibits government from establishing religion, whereas this appears to be the action of individuals. Therefore, the plaintiffs might have to argue that the government has a constitutional responsibility to proactively seek out and remove religious symbols upon its property. This argument would turn the Establishment Clause on its head since its language specifically applies to “law,” which we broadly construe as any affirmative act of government. Inaction is the antithesis of lawmaking, so this argument just doesn’t work.
2) The crosses are located on a remote hill in Camp Pendleton. That distinguishes this from other cases where religious monuments are placed in conspicuous public locations (and force religion upon unwitting minds, or so the theory goes). It’s difficult to fathom how a couple of crosses in a remote location constitute the government’s secret weapon to establish religion.
In sum, this really doesn’t sound like a very good case based upon these facts. Evidence that Pendleton has forbidden similar memorials with non-Christian overtones may change this analysis, but right now the facts just don’t work.
As far as policy goes, I’m astounded by the statement made by chief-objector Jason Torpy:
In a case where federal officials allow to stand a prominent Christian cross as a representation of military service, atheists, humanists and all non-Christians who have fought and died for our country are relegated to second-class citizenship.
The worst absurdity of this statement lies in its implication that other groups—including atheists—are powerless to enact their own memorials. Why don’t they leave this memorial be and build their own? Sure sounds a lot more productive than tearing down a veterans’ memorial.
Ryan T. Darby practices civil litigation and public interest law in San Diego.