An Atheist and The Mount Soledad Cross Controversy

The 29-foot Easter Cross on Mount Soledad in La Jolla, California, has become a considerable controversy throughout the United States. Since 1913 this cross has been located on state land. In 1989 a veteran and atheist, Philip K. Paulson, known for his popular article I Was an Atheist in a Foxhole,[1] filed suit against the city of San Diego for violating article I section 4 of the California Constitution, which states that “The legislature shall make no law respecting the establishment of religion.”[2] For the last two decades the legal issues surrounding the Mount Soledad Cross have continued. The organizations that have actively taken sides on this issue have grown over time. Those who are in favor of keeping the Easter Cross on Mount Soledad include organizations like the American Legion, the Mount Soledad Memorial Association (started by the American Legion), the American Center for Law and Justice, Jews Against Anti-Christian Defamation, and the Liberty Institute; those who are working for the cross to be removed include the Americans United for Separation of Church and State, the American Civil Liberties Union, Jewish War Veterans of the United States of America, and the Freedom From Religion Foundation. I will examine the history, leadership, and ideology of two of these organizations, American United for Separation of Church and State and the American Legion, as they relate to the Mount Soledad Controversy.

The Americans United for Separation of Church and State is an organization, founded in 1947 by a diverse group of religious, civic, and educational leaders. The organization began in response to legislation aimed at providing public funding to religious schools. Other issues they cover are: mandated prayer in public schools, tuition tax credits for religious schools, faith-based initiatives, and what they consider other violations of the endorsement clause. Their statement of purpose says “Americans United is a nonpartisan educational organization dedicated to preserving the constitutional principle of church-state separation as the only way to ensure religious freedom for all Americans.”[3] Americans United for Separation of Church and State is currently headed in Washington D.C., has 67 chapters across the nation, and is lead by Executive Director the Reverend Barry W. Lynn, Esq.

The Reverend Barry W. Lynn, Esq. received his Bachelors degree from Dickinson College and his Masters degree from Boston University. He then graduated from Georgetown University Law Center with a degree in law. After pursuing his higher education, Rev. Lynn worked for the United Church of Christ (UCC), the American Civil Liberties Union, and eventually took the post of Executive Director of Americans United for Separation of Church and State. Rev. Lynn’s first book, Piety & Politics: The Right-Wing Assault on Religious Freedom (New York: Harmony Press, 2006) argues that separation of church and state is the only way to guarantee religious freedom. Rev. Lynn has also been a guest speaker on shows like NBC’s Today Show, Lou Dobbs Tonight, Anderson Cooper 360, and is a regular co-host of Pat Buchanan and Company. Rev. Lynn is also the host of a radio program, located in Washington D.C., called Culture Shock.

Americans United for Separation of Church and State publishes a monthly magazine titled Church & State. A couple entries over the years have been on the Mount Soledad Controversy and reveal the Americans United for Separation of Church and State’s stance on the issue. About the Easter Cross, they think the fact that, “the cross is used in a veterans’ memorial…does not make it secular. In fact, as a burial marker, the cross has been used almost exclusively for Christian burials in order to convey a sectarian message that the deceased lived and died as a member of a particular Christian community. And as a monument in a veterans’ memorial, the cross conveys a similar sectarian message: that only fallen Christian soldiers are being remembered.”[4] Here the Americans United for Separation of Church and State are arguing against the notion that the Easter Cross is simply, or primarily, a secular symbol. In Trunk v. City of San Diego, 2008, U.S. District Judge Larry Alan Burns concluded that, “When the cross is considered in the context of the larger memorial and especially the numerous other secular elements, the primary effect is patriotic and nationalistic, not religious.”[5] A similar case in 2010, Lautsi v. Italy, argued that the law requiring crucifixes to be placed in public classrooms did not violate the European Convention on Human Rights, since they are to be thought of as secular symbols.[6]

In response to the decision of Trunk v. City of San Diego, Americans United for Separation of Church and State point out, “Secularizing the central symbol of Christianity is the newest tactic by anti-separationist groups to preserve government displays of the cross and America’s ‘Christian Heritage.’”[7] On January 14, 2009, Americans United for Separation of Church and State, with the support of the Interfaith Alliance, the Military Association of Atheists and Freethinkers, the Military Religious Freedom Foundation, the Progressive Christians Uniting, and the Unitarian Universalist Association, filed a friend-of-the-court brief “arguing that the Mt. Soledad cross is unconstitutional and an inappropriate memorial for veterans in a religiously diverse nation.”[8] This organization feels they are fighting for religious liberty in a Country that often connects itself with, and endorses, the Judeo-Christian belief system and symbols.

On the other side of the Mount Soledad Controversy are the American Legion, a Veterans Association that, according to their website, “is a nonpartisan, not-for-profit organization with great political influence perpetuated by its grass-roots involvements in the legislation process.”[9] The American Legion “was chartered by Congress in 1919 as a patriotic veterans organization…the Legion currently has about 2.4. million members in 14,000 posts worldwide.”[10] The American Legion’s preamble explains their philosophy in an straightforward manner, and since the statement is rather long I will only quote the beginning lines: “For God and Country, we associate ourselves together for the following purposes: To uphold and defend the Constitution of the United States of America; to maintain law and order; to foster and perpetuate a 100-percent Americanism; to preserve the memories and incidents of our associations in the great wars.” They define each of these statements as “clauses,” and explain their first clause, “For God and Country, we associate ourselves together,” as meaning that “The American Legion recognizes the influence of Almighty God in all worthwhile endeavors.”[11] The clause that is of main concern for the Mount Soledad Memorial is “to preserve the memories and incidents of our associations in the great wars.”

The executive head of the American Legion is known as the “National Commander.” The current National Commander is Jimmie Foster, a former marine who has served on the National & Homeland Security Council, the Economic, Internal Affairs and Legislative commissions, and was the former chairman of the National Legislative Commission. Jimmie Foster has been active in the American Legion for almost three decades, is a member of Spenard Post 28 in Anchorage, and is the Western District adjutant for numerous department commanders. Over his year as National Commander, Jimmie Foster has created what is known as the “Lucky 7 Pin Incentive Program” that is rewarded to any member of the Legion who signs up at least two new members or renews five current memberships; he has sent a letter to Congress urging them to keep defending the Defense of Marriage (DOM) Act since to not would go against the Legion’s Resolution 280 that states: “The American Legion supports by resolution the proposition that “marriage is inscribed in human nature and centered on the voluntary union of a man and a woman in a lifelong covenant” and we “oppose all efforts to undermine, alter, or otherwise corrupt the institution of marriage.”[12] Jimmie Foster also made it clear that the Legion opposes the DREAM Act: ““By resolution, our membership is opposed to illegal immigration into this country…We don’t understand why so many members of Congress feel compelled to provide for amnesty for a portion of illegal immigrants before securing our borders and tackling the broken immigration system.”[13] He also met with President Obama on March 28, 2011 to discuss veteran’s issues, and most recently met with the last surviving veteran of WWI, Frank Buckles, before he passed away February 27, 2011.

The American Legion’s publishes much of its activity and perspectives on the news section of their website. In response to the Ninth Circuit Court of Appeal’s decision to remove the cross because of it’s unconstitutionality, Jimmie Foster said: “I am asking Attorney General (Eric) Holder to appeal this regrettable decision to the Supreme Court…The American Legion strongly believes the public has a right to protect its memorials.”[14] The previous National Commander, Clarence Hill, asked “How can the United States be considered ‘one nation under God’ if it removes all symbols of God from the public square.”[15] “If the ACLU succeeds [removing the cross],” Hill asks, “are the thousand of crosses and Stars of David at veterans cemeteries next?”[16]

The American Legion refers to their social and political policies, once voted and eventually agreed upon, as “resolutions.” A quick look at some of these resolutions makes clear where the American Legion stands on a whole host of issues. In Resolution 26, for instance, we see the Legion’s obvious promotion of the American military: “Urge the United States Government to retain the necessary deployed forces worldwide to accomplish both short-term as well as long-term commitments and contingencies.”[17] In Resolution 23 the Legion describes their opinion on immigration: “The American Legion opposes legislation that would result in the granting of amnesty and legal residency, in any form or by any name, to illegal immigrants currently in the United States.”[18] In Resolution 303 “The American Legion encourages legislation which would establish English as the official national language.”[19] In a similarly patriotic fashion, in Resolution 315, “The American Legion, at all levels, continue its unyielding support for the Pledge of Allegiance and its provisions of national loyalty by using all means practical to inform Americans about the belief in and the reliance in God by our nation’s founders in forming our democratic Republic.”[20]

After examining these organizations that represent certain sides taken on the Mount Soledad Cross Controversy, I have three problems with what I uncovered. First, the claim of these organizations to be “nonpartisan” brings up a whole host of debates surrounding what the term means and why it is used. Since these organizations are both 501(c)(3) non-profit organizations, they must meet certain requirements from the Internal Revenue Service to qualify for state and federal tax-exemption. The most important requirement of the IRS is that 501(c)(3) “are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”[21] This does not mean that these groups cannot provide “voter education” or take stances on political matters. The line between illegal lobbying for 501(c)(3) organizations, and simply providing voter education, is difficult to determine (i.e. the Mormon Church on Proposition 8). It is interesting, to say the least, that nonpartisan groups (which are actually covertly partisan) cannot lobby (although they covertly lobby) for their respective positions. You can see this subtle contradiction in the mission of the American Legion: “not-for-profit organization with great political influence perpetuated by its grass-roots involvements in the legislation process.”[22]

Some 501(c)(3) organizations are more partisan than others, depending on the opinions or resolutions they embrace and promote. The American Legion, in my opinion, is more partisan than American United for Separation of Church and State, since they offer resolutions on a plethora of social issues, most of which could never be endorsed by a Democrat, leftist, or liberal. From military action, to illegal immigration, to gay marriage, the Legion holds the Republican perspective. American United for Separation of Church and State is different. They only promote one idea: the separation of Church and State. They say nothing on issues irrelevant to the 1^st Amendment.

Second, both of these organizations think they have the correct understanding and interpretation of the Constitution. On the back of every American Legion membership card are inscribed the admonition: “To uphold and defend the Constitution of the United States of America.”[23] It should be emphasized that the American Legion upholds and defends the Constitution as they interpret it. The American Legion does not interpret the 1^st Amendment in a separationist manner. This is why they can argue that it is not unconstitutional to have an Easter Cross on public land. Americans United for Separation of Church and State interpret the 1^st Amendment as promoting a strict separation between Church and State, and they often quote Thomas Jefferson’s famous address to the Danbury Baptist’s highlighting the “wall of separation” phrase. Hiram Sasser of Liberty Legal Institute, a team of lawyers in partnership with the American Legion, argues, “World War I memorials throughout the world–whether it’s New Zealand, the Czech Republic, England, the United States –have traditionally been in the shape of a cross…that’s how World War I veterans were remembered and honored. And so I think that all of these memorials deserve protection. We should not throw away the symbolism of the sacrifice and the courage of our World War I veterans simply because some people don’t like the symbol.”[24] This leads me to the third problem I discovered, namely, the debate between the 1^st Amendment and American history, tradition, and culture.

Americans United for Separation of Church and State think that a separationist interpretation of the 1^st Amendment trumps the preservation and maintenance of religious symbols on public land. The American Legion views this as a form of cultural genocide. As one of my peers noted in reference to gay marriage: “It ultimately comes down to how you view tradition.” I absolutely agree. Each of these organizations has differing views on American tradition—one argues that tradition cannot trump the 1^st Amendment, and the other thinks its constitutional to preserve American religious history—but both claim to be objective, nonpartisan organizations meant to educate voters. The question now gets framed as: “Is it worth preserving the Mount Soledad Easter Cross in the name of American tradition, or is American tradition not worth possibly violating the 1^st Amendment?”

[1] Found at: http://www.americanhumanist.org/who_we_are/about_humanism/I_Was_an_Atheist_in_a_Foxhole

[2] Found at: http://www.leginfo.ca.gov/.const/.article_1

[3] Found at: http://www.au.org/about/mission-statement.html

[4] Found at: http://www.au.org/media/church-and-state/archives/2011/02/california-cross-display-is.html

[5] Found at: http://www.leagle.com/xmlResult.aspx?page=9&xmldoc=20081767568cqfsupp2d1199_11673.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7

[6] Found at: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=857725&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 h

[7] Found at: http://www.au.org/media/church-and-state/archives/2009/02/cross-purposes.html

[8] Ibid, 32

[9] Found at: http://www.legion.org/about

[10] Found at: http://www.legion.org/history

[11] Found at: http://www.legion.org/preamble

[12] Found at: http://www.legion.org/news/96921/legion-don-t-corrupt-institution-marriage