complaint filed in aha v. city of lake elsinore
DESCRIPTION
This is the complaint filed in American Humanist Association et al. v. City of Lake Elsinore, California, challenging the city's construction of a war memorial featuring an image of a soldier kneeling before a cross as a violation of the Establishment Clause.TRANSCRIPT
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VERIFIED COMPLAINT
William Burgess (D.C. Bar No. 473101)
American Humanist Association
1777 T Street, N.W.
Washington, D.C. 20009
T: (202) 238-9088
F: (202) 238-9003
David J.P. Kaloyanides SBN 160368
15338 Central Ave.
Chino, CA 91710
T: (213) 623-8120
F: (213) 402-6292
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
EASTERN DIVISION
AMERICAN HUMANIST
ASSOCIATION, JOHN LARSEN
and DIANA HANSEN,
Plaintiffs,
vs.
CITY OF LAKE ELSINORE, BY
ITS MAYOR ROBERT MAGEE,
MAYOR PRO TEM NATASHA
JOHNSON, AND CITY
COUNCILMEMBERS DARYL
HICKMAN, STEVE MANOS AND
BRIAN TISDALE,
Defendants.
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Case No.:
VERIFIED COMPLAINT FOR
EQUITABLE RELIEF AND DAMAGES
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VERIFIED COMPLAINT
Seeking to protect their civil liberties and constitutional rights, the plaintiffs
identified above (the “Plaintiffs”), as their complaint against the City of Lake Elsinore,
California (the “City”), by its city council (the “City Council”), consisting of its mayor,
Robert Magee, mayor pro tem Natasha Johnson, and councilmembers Daryl Hickman,
Steve Manos and Brian Tisdale (collectively, the “Defendant”), allege as follows:
NATURE OF THE CLAIMS
1. This action challenges the constitutionality of the City’s design, approval,
funding, construction, ownership, maintenance and prominent display of a
monument (the “Cross Monument”) depicting a soldier kneeling before a Christian
cross as a violation of the separation of church and state required by (i) the
Establishment Clause of the First Amendment of the United States Constitution, as
applied to the City by the Fourteenth Amendment thereof, and (ii) the
Establishment, No Preference and No-Aid to Religion Clauses of Articles I
(Section 4) and XVI (Section 5) of the California Constitution.
2. The Plaintiffs seek injunctive and declaratory relief under 42 U.S.C. § 1983
against the Defendant and nominal damages to redress this violation of the
separation of church and state, together with recovery of attorney’s fees and costs
under 42 U.S.C. § 1988 (b).
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JURISDICTION AND VENUE
3. This case arises under the First Amendment to the Constitution of the
United States and presents a federal question within this court’s jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1343 (a)(3). This Court has supplemental
jurisdiction to hear the related claims under the California Constitution arising
from the same facts pursuant to 28 U.S.C. § 1367.
4. The Court has the authority to issue a declaratory judgment under 28 U.S.C.
§ 2201 and to provide injunctive relief under 28 U.S.C. § 1343 and Fed. R. Civ. P.
65.
5. Venue is proper within this judicial district pursuant to 28 U.S.C. § 1391
(b)(2) because the events giving rise to the Plaintiffs’ claims occurred herein.
PARTIES
6. The first Plaintiff, the American Humanist Association (“AHA”), is a
nonprofit 501(c)(3) organization incorporated in Illinois with a principal place of
business at 1777 T Street N.W., Washington, D.C. AHA is a membership
organization, with over 160 chapters and affiliates nationwide (including 20 in
California) and over 20,000 members and supporters, including residents of the
City. AHA promotes humanism and is dedicated to advancing and preserving
separation of church and state, the constitutional protections found in the Bill of
Rights, and, in particular, the First Amendment to the United States Constitution.
AHA brings this action to assert the First Amendment rights of its members.
7. The second Plaintiff, Diana Hansen (“Ms. Hansen”), is a member of AHA
and a resident of the City. She objects to the funding, construction and display of
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the Cross Monument. She does not want to have unwelcome contact with the
Cross Monument, and its government-endorsed religious message, once erected
and displayed.
8. Ms. Hansen objects to the Defendant’s expenditure of City tax dollars on
the construction and maintenance of the Cross Monument.
9. The third Plaintiff, John Larsen (“Mr. Larsen”), lives in Lake Elsinore. He
objects to the funding, construction and display of the Cross Monument. Mr.
Larsen does not want to have unwelcome contact with the Cross Monument, and
its government-endorsed religious message, once erected and displayed.
10. Mr. Larsen objects to the Defendant’s expenditure of City tax dollars on the
construction and maintenance of the Cross Monument.
11. The Defendant is the City of Lake Elsinore, a California local government
entity. This action challenges the decision of the City, acting through its
legislative body, the City Council, to approve and fund the construction of the
Cross Monument on City-owned property. Its actions described herein constitute
“state action” as that term has been defined by relevant case law.
FACTS
9. The City owns a piece of public property commonly known as the Lake
Elsinore Diamond Stadium, located at 500 Diamond Drive, Lake Elsinore,
California (the “City Stadium”).
10. At the April 24, 2012, City Council meeting, the City Council discussed the
possibility of creating a monument to honor local veterans of military service.
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11. On May 7, 2012, the City Council directed City staff to research potential
designs and return to the City Council at its July 10, 2012, meeting to present their
findings.
12. At the City Council’s July 10, 2012, meeting, the city manager reported to
the City Council that the staff had researched various war memorials in California.
His report (the “Staff Report”) showed the City Council images of five memorials
in California, none of which contained religious elements.
13. The Staff Report stated that “numerous researched memorials also include a
design” such as an “American flag, bald eagle, etc.” but made no mention of
religious elements.
14. The Staff Report proposed three design possibilities. The first design
consisted of a rectangular slab with the words: “Lake Elsinore Veterans Memorial.
This Memorial is dedicated to the men and women who served in our armed
services. We shall never forget!” The only image on the design was the City’s
crest and the insignias of all five branches of the military.
15. The second design in the July Report consisted of a pentagonal slab with the
same text and insignia.
16. The third design (the “Obelisk Design”) consisted of an obelisk-shaped slab
with the same text and insignia.
17. The Staff Report noted that $50,000 had been budgeted for the monument
for fiscal year 2012-2013.
18. The Staff Report recommended that the monument be placed in the City
hall courtyard.
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19. During the July 10, 2012, meeting, then-Mayor Pro Tem Daryl Hickman
(“Hickman”) suggested that the monument instead be placed at the entrance of the
courtyard walkway at the City Stadium in order to maximize public exposure.
Councilmember Robert Magee (“Magee”) agreed. Mayor Brian Tisdale
(“Tisdale”) agreed with the proposed location. Councilmember Melissa Melendez
(“Melendez”) moved that the City Council choose the Obelisk Design and place
the monument at the entrance of the City Stadium, but also to form an ad-hoc
design subcommittee (the “Redesign Committee”) of the City Council, to be led
by Mayor Tisdale and Joyce Hohenadl (“Hohenadl”)1 of the Lake Elsinore
Historical Society, to change the design of the monument. The motion passed
unanimously.
20. The City Council’s Redesign Committee met on August 3, 2012, September
7, 2012, and October 5, 2012.
21. During these meetings, the Redesign Committee chose a local company,
Sun City Granite Inc. (“Sun City Granite”), to provide technical advice to the City
on designing and constructing the monument.
22. On October 19, 2012, the Redesign Committee held a final design meeting.
At this meeting, committee determined to recommend that the City Council (i)
approve a new design and location, the City Stadium, for the monument and (ii)
authorize the City to contract with Sun City Granite for the construction of this
monument.
1 Note that Hohenadl wrote on the “sign-in sheet” for the Redesign Committee’s
October 23, 2012, meeting that she was there on behalf of the “City of Lake Elsinore.”
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23. Rather than the secular Obelisk Design, the focal point of the new proposed
design was an image of a soldier kneeling before a Christian cross, as shown on
Exhibit 1.
24. A proposal by Sun City Granite, dated October 16, 2012, estimated that the
total cost of the monument would be $46,172.30.
25. At the October 23, 2012, City Council meeting, the City’s Management
Analyst Justin Carlson (“Carlson”) presented the Redesign Committee’s report to
the council. Carlson had attended the August 3, 2012, and October 19, 2012,
redesign meetings. In his opening statement, Carlson indicated that the purpose of
the monument would be to represent soldiers from “all wars.” Carlson then
showed a projected depiction of the monument featuring the Christian cross.
26. After Carlson finished his presentation, several local residents spoke in
opposition to the proposal and requested that the City Council consider alternate
designs. Objections included that of (i) Suzie Rupnow (“Rupnow”); (ii) Mr.
Larsen; (iii) Robin Golden (“Golden”); and (iv) Bill Limebrook (“Limebrook”).
27. Rupnow stated: “Our military forces are a diverse group of people in many
ways . . . To construct a veterans memorial that honors those only of one faith will
surely invite litigation . . . the cross depicts Christianity. . . a memorial on public
property built with public funds must honor all our troops.” Rupnow also stated
that a beautiful monument could easily be achieved using a secular form, pointing
to the example of the bronze statue in San Clemente, California, by Lake Elsinore
sculptor Limebrook. (See Exhibit 2 for an image of this statute). She said that
Limebrook’s monument honors all troops, unlike the one presented at the meeting
containing a Christian cross.
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28. Mr. Larsen spoke after Rupnow. He said that the design “lacks a particular
original style, design and observation.” He added that current design “is
problematic in its iconic and singularly religious symbology.” He believed that
the City “should do better.”
29. Limebrook followed Larsen. He said he found it “refreshing to see a cross
that is our heritage.” But he added that there is a “certain aesthetic that seems to
be missing and I would be honored if you would consider me . . . I would submit
to you another design that might be a bronze with stone . . . I know what the
budget is.”
30. Golden was the last citizen to speak. She said the depiction of the Christian
cross would “open the floodgates to First Amendment controversies.” She offered
two examples of this, one in “Mojave and one in Camp Pendleton.” She also
disliked the shape of the design, saying “so much more original could be done.”
She pointed to Limebrook’s San Clemente statute as an example of a better
monument.
31. Councilmember Peter Weber (“Weber”) thanked the Redesign Committee
for coming up with the new design. Weber said he thought the design “looked
fine” but suggested that the City Council should consider other designs. He added
that Limebrook should be included in the design process.
32. Mayor Pro Tem Hickman stated, in regards to the cross: “I feel sorry for us
that we as Christians cannot show the cross because the First Amendment, okay, it
really is a shame that our society is leaning that way.”
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33. Councilmember Magee stated that the “religious reference” in the Cross
Monument made him “pause.” He said: “I don’t want to force something on the
community that is going to be part of our history.”
34. Councilmember Melendez said she was “disappointed in the turn of events
this evening.” She stated that it was a “sad reflection on our society when as a
Christian nation, one of the principles upon which we were founded is something
we are forced to hide in society specifically with reverence to our veterans, the
very people who have fought to protect our religious freedom. And now we have
organizations who choose to take that opportunity of reverence away from us.”
35. Melendez further stated: “However, as I understand it, the cross on this
memorial is an issue, there is a No Preference Clause apparently that we must
abide by so that very likely, will have to be removed, and I am sorry to have to tell
you that.” She said that “careful thought” was put into this project and design
specifically.
36. Melendez went on to say that she was sensing the City Council wanted to
continue the agenda item, which she said was “disappointing.” She believed that
the citizens opposing the design should have come forward at the July meeting
when the various options were discussed. None of the designs presented at the
July meeting contained any religious symbol.
37. Mayor Tisdale stated that for twenty years he served this country “and wore
the cross.” He continued to say: “it upsets me that we have to play the pettiness of
the cross and talk about the Christianity of it.”
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38. Councilmember Magee then made a motion to continue the item and to
direct City staff to discuss the design with regard to the “religious references.”
His motion was seconded.
39. In response, Hickman stated: “You know, I’m not going to sit here and wait
for people to denigrate my beliefs, okay, and so I’ll give them two weeks, you got
your designs, come back in two weeks. If not, I don’t want to hear anything about
it.”
40. Mayor Tisdale suggested that it would not be possible to have a new design
ready in two weeks.
41. Hickman responded, “Then we don’t have to change it.”
42. Councilmember Melendez said she did not “want to see this continued.”
Initially, she made a motion to approve the design and proposed location “with the
exception of the cross.”
43. Before continuing, however, Melendez stated, “Well, first let me ask, I just
need clarification from the city attorney: is that an issue?” The city attorney
responded, “Yes, it is an issue.” Another Councilmember simultaneously said
“Yes.”
44. Melendez asked, “So, it’s not allowed to be on there, by law?” The city
attorney answered: “It’s something that we should evaluate, but it is an issue.”
Melendez said: “Well no, I, no no no.” The city attorney responded, “I would say
no, it cannot be there.” The attorney stated clearly: “If what you want is a yes/no
answer, right now, the answer is, it cannot be there.” Melendez said, “Okay.”
45. Hickman then said to Melendez, “May I make a suggestion? What if we put
a pair of boots with a rifle and a helmet? That’s the way they come back and
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celebrate . . .” Melendez responded: “Well, that’s completely changing the design
. . .” Hickman clarified: “I just mean where the cross is at.”
46. Melendez then stated, “I am going to make a substitute motion that we
move forward today with the exception of, which it pains me to say this, of
removing the cross, only because the city attorney is saying that’s going to open us
up to litigation, is that correct?”
47. The city attorney responded: “It’s a publicly funded, it goes back to the
separation of church and state, and there is a no preference, you have public funds
going into a public monument in a public location, and it demonstrates, arguably
demonstrates, a religious preference.”
48. Hickman asked: “Can we put a rifle with a helmet and the boots?” The city
attorney said, “Yes.”
49. Mayor Tisdale said it was the City’s monument and the City Council could
change the design however they pleased.
50. Melendez then made a new motion, stating: “You know what, here’s my
motion to, I think at some point you have to take a stand. I’m sorry, I just think
you do. And I’m going to make a substitute motion that we approve this project as
is.”
51. Magee restated his motion for the “elimination of the religious reference”
and to have City staff develop “another recommendation.” He stated, “We’re
trying to do something nice here . . . we’ve made it a divisive element, it shouldn’t
be divisive . . . so my motion is we continue.”
52. Magee’s motion passed 4-0, with Mayor Tisdale abstaining.
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53. On November 2, 2012, the Redesign Committee held a public meeting and
took testimony from approximately seventeen residents about the design. Four
were against the current proposal (with the Christian cross), two were indifferent,
nine spoke to keep the depiction as proposed, and two spoke to keep the depiction
as proposed but with the addition of a Star of David.
54. The Redesign Committee voted unanimously to amend the design to add a
Star of David without removing the cross and to add numerous additional
Christian crosses in the background, as shown in Exhibit 3. The committee
requested that the new design be presented to the City Council at its meeting on
November 13, 2012.
55. At least three letters were submitted to the City opposing the design. A
fourth letter was submitted in favor of it. The first, dated October 31, 2012, was
sent to the City Council by Jeffrey Crumbaker, representing a “company of
designers and craftsmen specializing in the manufacture of public monuments.”
The letter objected to the design presented at the October 23, 2012, meeting,
containing the Christian cross, and stated that the design lacked originality and
aesthetic value, noting in part: “The copy and artwork is so trite and overused as to
be embarrassing.”
56. The second letter, dated November 7, 2012, was sent to each of the
Councilmembers by the American Humanist Association (“AHA”). It made clear
that monument, with or without the newly added Star of David, violated the
Establishment Clause. A copy of this letter is attached as Exhibit 4.
57. The third letter, dated November 7, 2012, was submitted by the Military
Association of Atheists and Freethinkers (“MAAF”). The letter stated in part: “To
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place a cross or other religious symbol on a memorial for veterans is a slap in the
face to our service. Such an act by the City of Lake Elsinore gives official
sanction to Christianity over all other beliefs. Adding a Star of David would only
serve to patronize Jewish personnel and to further emphasize that worship of a
monotheistic God is ‘approved’ for citizens and that all others are second-class.”
MAAF’s letter included a picture of an alternate design, eliminating the cross but
making no other changes, which noted that the City’s design was “appropriate for
church” and that MAAF’s simple design change would make it “appropriate for
government.”
58. The fourth letter, dated November 12, 2012, was sent by Chris Hyland. Mr.
Hyland favored the cross, and wrote: “I am a believer in having the Cross on the
Memorials; however, with or without the cross this is for the admiration of our
Veterans who gave their lives to protect us. Question those who are objecting to
any religious mention, or cross, or star on the Memorial did they serve in the
military fighting in a war to protect our Nation or ?”
59. At the November 13, 2012, City Council meeting, the Redesign Committee
again proposed the design including the crosses and the Star of David, as shown
on Exhibit 3.
60. Prior to voting, the City Council heard testimony from the public about the
Cross Monument.
61. The first speaker was Sharon Heil, representing the American Legion. Heil
wore a cross around her neck. She spoke in favor of keeping the cross design.
62. The second speaker was Hohenadl. She wore a large Christian cross
around her neck. She said as to the design that “our ancestors came to this country
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with their Christian-Judeo faiths, as Councilmember Melendez said. . . . I’m
afraid because of lawsuit threats we are being blackmailed into sacrificing our
heritage and our beliefs.” She emphasized that the Redesign Committee
intentionally selected a location with “heavy people traffic to observe this
memorial.”
63. The next speaker was Deborah Rodriguez (“Rodriguez”), who spoke in
favor of the cross design. Like Hohenadl and Heil, Rodriguez also wore a large
cross around her neck. Among other things, Rodriguez said that the Christian
cross means “God.” She also said that the country was founded on “Christianity.”
She emphasized a second time that “God is the cross.” She also said “it is my
cross and my cross should stay.” She added that the “handful” of people objecting
to the cross design probably “never served with this country.” She said they
probably “never served for what we believe in.” She continued that they “do not
deserve to take our freedom away to have our cross on the monument.”
Rodriguez’ speech was followed by a loud applause.
64. Barbara Anderson (“Anderson”) spoke next against the cross. She said that
even though the cross was supplemented by the Star of David, the monument left
out “all the others who served.” She said that soldiers who are neither Christian
nor Jewish also deserve to be honored. She noted that she personally is a
Christian. She pointed out that the battlefields containing Christian crosses
reflected the religion of the individual soldiers buried there. She said that
monuments in the United States, such as the ones in Washington, D.C., “do not
have the cross” on them. She concluded that there are numerous other ways to
express appreciation of our service members without the use of religious symbols.
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65. The next speaker was Henry Davie (“Davie”). Davie was a member of the
Redesign Committee and attended all four of its meetings. Davie spoke in favor
of the Christian cross. There was a loud applause following his speech.
66. Ralph Zunker (“Zunker”) also spoke. Zunker was a member of the
Redesign Committee and attended three of its four design meetings. Zunker wore
a large Christian cross around his neck. He spoke in favor of the cross and stated
that he was born and raised a Catholic. He said that for “so few in this city, and I
mean few . . . to think that they are going to have the power [to remove the cross]
and not have been in the military. I don’t know where they came from. They must
have came [sic] from a third world country . . . That’s not a political thing. That’s
up there for civil war veterans, for whatever . . . They didn’t hide behind some
cockamamie outfit in Washington, D.C. . . . I for one, being a veteran, and there’s
40, 50, 60, of them in here, pretty much think just the same way I do. That thing
[the cross] needs to stay just the way it is. . . . This is a symbol for all
denominations of religion if anybody knows anything about religion.” He
continued that he “would like to see [the Star of David] on there” simply because
he believed it “might alleviate a whole lot of things.” He said that the American
Legion and the VFW would provide funds buy “that circle” to make it private in
order to get around the Constitution if necessary. He concluded by saying in
regards to those “few” in opposition to the cross: “these people need to find a
place to live other than America.” His speech was followed by a loud applause.
67. The next speaker was Bill Limebrook. Limebrook was there to propose a
different design – one that he hoped veterans and everyone else could get behind.
He said that the cross design lacked “artistic value” and that he “went online” and
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found clip art identical to the image of the soldier kneeling in prayer before the
cross. Indeed, he noted it was an “exact image.” Limebrook said that the City
could do more than “just a cut out.” He then showed the City Council pictures of
monuments throughout the country, all of them secular, as examples of what an
aesthetically pleasing monument could look like.
68. The next speaker was Nico Melendez, the husband of Councilmember
Melendez. Mr. Melendez sent his comments in an e-mail to the City Council.
His e-mail was read aloud to the public by City Clerk Bloom. Mr. Melendez asked
that no changes be made to the design or location. He specifically approved of
the Star of David and the Christian Cross on the monument. The e-mail was
followed by a loud applause.
69. The next speaker was Rita Thompson (“Thompson”) from Lake Elsinore,
who also sent her comments to the City Council in the form of an e-mail. Mayor
Tisdale read her e-mail to the public. Thompson wrote that while she was not in
favor of “spending public funds on monuments, I am in favor of any design
promoting Bible morality.”
70. Although both AHA and MAAF sent letters to the City Council explaining
that the Cross Monument would be unconstitutional and does not represent those
soldiers who are not Christian or Jewish, the City Council did not read these letters
aloud to the public as they had done with those in support of the cross.
71. Councilmember Weber was the first to speak for the City Council at this
meeting on the issue of the monument. He said that the location at the City
Stadium was ideal because of the foot traffic. He stated that he wanted their
monument to be like the Father Duffy Memorial in Times Square where, he said,
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there is a “cross right there in the middle” such that “thousands of people” see it
every day. He therefore moved to approve the new proposal as is.
72. Melendez spoke next. She noted that the Cross Monument has been
“controversial.” She nevertheless claimed that it honors “all veterans.” Although
she had previously stated that the cross was religious, at this meeting she claimed
that it “has nothing to do with religion.”
73. Hickman spoke next and said that he was the one who suggested the
location at the City Stadium. He selected that location for the “traffic” and for
the “youth” so that they could realize “what life’s about.” He seconded Weber’s
motion.
74. Magee then stated that taxpayer would be on the hook for any lawsuits
against the City. Magee then told the public that Melendez “reached out to a
group that has offered to support us and defend us against any of these actions at
no cost to the City.” Magee was referring to a Christian legal special interest
group called the Pacific Justice Institute.
75. Magee added: “that’s important because the City has been sued more than
once for issues like this.”
76. In moving to support the motion to approve the design with the cross and
Star of David, Magee said he was most persuaded by Deborah Rodriguez’s speech
“talking about her cross.”
77. The City Council then took a vote on the motion to approve the Cross
Monument. It was approved unanimously.
78. The City Council authorized the City to contract with Sun City Granite to
construct the Cross Monument.
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79. The plans approved by the City Council call for the core of the Cross
Monument to be approximately 4 and a half feet tall, 3 feet wide, 8 inches thick
and mounted on an 8-inch thick granite base
GROUNDS FOR RELIEF
First Ground for Relief: Federal Establishment Clause
80. All preceding allegations are incorporated herein by reference.
81. The Defendant’s approval of the design, funding, construction, and display
of the Cross Monument amounts to the advancement of religion (and, specifically,
an endorsement of and affiliation with Christianity and Judaism) in violation of the
Establishment Clause of the First Amendment to the United States Constitution.
82. The Defendant acted under color of state law in violating the First
Amendment as described herein in violation of 42 U.S.C. § 1983.
Second Ground for Relief: California Constitution
83. All preceding allegations are incorporated herein by reference.
84. The Cross Monument, as described above, constitutes an impermissible
establishment of religion in violation the Establishment Clause contained in § 4 of
Article I of the California Constitution.
85. The Cross Monument gives the appearance that the Defendant prefers some
religions (Christianity and Judaism) over all others, and religion in general over
non-religion, in violation of the No Preference Clause contained in § 4 of Article I
of the California Constitution.
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86. The City’s funding of the construction of Cross Monument, and the
donation of City property to display it, violates the No Aid Clause contained in § 5
of Article XVI of the California Constitution.
RELIEF SOUGHT
The Plaintiffs request that this Court grant the following relief:
1. A declaratory judgment that the Defendant’s approval of the design,
funding, construction, and display of the Cross Monument on public property
violates (i) the Establishment Clause of the First Amendment of the United States
Constitution and (ii) Article 1, Section 4 and Article 16, Section 5 of the California
Constitution, and is a violation of the Plaintiffs’ constitutional rights under 42
U.S.C. § 1983;
2. An injunction preventing the Defendant (and any successors or assigns)
from funding or displaying the Cross Monument on public property, or through
subsequent transfer on private property, in violation of the Establishment Clause
and/or the California Constitution;
3. A judgment in the Plaintiffs’ favor for nominal damages;
4. An award to the Plaintiffs of his reasonable costs, disbursements and
attorneys’ fees as allowed by law from the Defendant pursuant to 42 U.S.C. §
1988; and
5. An award of such other and further relief as the Court shall deem just.
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Respectfully submitted,
Dated: April ___, 2013
William Burgess
American Humanist Association
David J.P. Kaloyanides
Attorneys for Plaintiffs
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VERIFICATION
I, the undersigned Plaintiff, have read this Verified Complaint and the same is,
by my own knowledge and upon information furnished to me, true. I declare under
penalty of perjury under the laws of the United States of America that the foregoing is
true and correct.
Dated this ___ day of _____________, 2013.
________________________________
John Larsen
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VERIFICATION
I, the undersigned Plaintiff, have read this Verified Complaint and the same is,
by my own knowledge and upon information furnished to me, true. I declare under
penalty of perjury under the laws of the United States of America that the foregoing is
true and correct.
Dated this ___ day of _____________, 2013.
________________________________
Diana Hansen
Exhibit 1
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[Picture of first version of cross monument]
Exhibit 2
[picture of secular San Clemente memorial]
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Exhibit 3
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Exhibit 4
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November 7, 2012
Brian Tisdale, Mayor of Lake Eslinore
City council members Daryl Hickman, Melissa Melendez, Peter Weber and Robert Magee
(via email)
cc: Barbara Leibold, City Attorney
Re: City-Owned Religious War Memorial Would Be Unconstitutional
Ladies and Gentlemen:
I am writing to alert you to a serious separation of church and state concern. We have recently
received a complaint from a local resident about a proposed war memorial (the “Memorial”) featuring
an image of a soldier kneeling in prayer before a Christian cross to be constructed by the city of Lake
Elsinore (the “City”) on City-owned property. It is our understanding that the City council is
considering approving the funding and design of the Memorial at its meeting tomorrow. As explained
below, it would be unconstitutional for a religious monument such as the Memorial to be financed and
displayed by the City in this manner.
The American Humanist Association is a national nonprofit organization with over 10,000
members and 20,000 supporters across the country, including in California. The purpose of the
AHA’s legal center is to protect one of the most fundamental legal principles of our democracy: the
constitutional mandate requiring separation of church and state, embodied in the Establishment Clause
of the First Amendment.2
Generally speaking, the Supreme Court has interpreted the Establishment Clause to make clear
that “the Constitution mandates that the government remain secular, rather than affiliate itself with
religious beliefs or institutions.” Co. of Allegheny v. ACLU, 492 U.S. 573, 610 (1989). In order to
secure this freedom from state-backed religion, the Constitution requires that any governmental
actions must have a “secular purpose” and not “advance . . . religion.” Id. at 590. Specifically, the
government “may not promote or affiliate itself with any religious doctrine or organization.” Id.
Courts “pay particularly close attention to whether the challenged governmental practice either has the
purpose or effect of [unconstitutionally] ‘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. Not only may the government not advance, promote, affiliate with, endorse,
2 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). Pursuant to the Fourteenth Amendment, the
Establishment Clause applies to the states. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
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prefer or favor any particular religion, it “may not favor religious belief [in general] over disbelief.”
Id. Instead, “religion must be a private matter for the individual, the family, and the institutions of
private choice.” Lemon v. Kurtzman, 403 U.S. 602, 625 (1971).
Applying these general constitutional principles, federal courts have been unanimous in
finding the display of religious war memorials, such as those containing a prominent cross, on public
property to be unconstitutional.3 In fact, “[t]here is no question that the Latin cross is a symbol of
Christianity, and that its placement on public land . . . violates the Establishment Clause.” Separation
of Church & State Comm. v. City of Eugene of Lane County, State of Or., 93 F.3d 617, 620 (9th
Cir.
1996) (emphasis added). It is therefore abundantly clear that the City’s funding, and subsequent
ownership, maintenance and prominent public display, of the Memorial on public land, would violate
the Establishment Clause by affiliating the state with an inherently religious display. Please note that
the potential addition of a Star of David, as several media reports have indicated is under
consideration, does not change this conclusion. As the Supreme Court has clearly noted, “[t]he
simultaneous endorsement of Judaism and Christianity is no less constitutionally infirm that the
endorsement of Christianity alone.” Allegheny at 615.
The fact that the Memorial serves in part the purpose of memorializing the war dead does not
transform its inherently religious nature into something appropriately secular. See e.g. Am. Atheists,
Inc. v. Duncan, 616 F.3d 1145, 1161 (10th
Cir. 2010) (holding that being a memorial does not nullify a
cross’ “religious sectarian content because a memorial cross is not a generic symbol of death; it is a
Christian symbol of death that signifies or memorializes the death of a Christian”). To the contrary,
the use of a cross as a memorial unconstitutionally “give[s] the impression that only Christians . . . are
being honored.” Greater Houston Chapter of Am. Civil Liberties Union v. Eckels, 589 F. Supp. 222,
235 (S.D. Tex. 1984). (Similarly, the inclusion of a Star of David, simply slightly broadens this to
give the impression that only Christian and Jewish veterans are being honored, excluding all others
and unconstitutionally elevating those religions to preferred status.)
This letter should not in any way be misread to imply that those who support the separation of
church and state in general, or AHA in particular, seek in any way to diminish the sacrifice of the
soldiers intended to be honored by the Memorial. It does them, and us all, a great disservice,
however, to conflate patriotism and religion. A Christian cross (or a cross plus a Star of David) does
not represent all of the war dead; it is not the marker chosen by Hindus, Muslims or Buddhists, nor by
atheists, agnostics, humanists or other nonbelievers. They are inherently sectarian symbols. The state
cannot choose such religious symbols to stand for all of the fallen. To do so is to denigrate the service
3 See Trunk v. City of San Diego, 629 F.3d 1099 (9
th Cir. 2011) (war memorial cross in public park unconstitutional), cert.
denied, 132 S. Ct. 2535 (2012); Am. Atheists, Inc. v. Duncan, 616 F.3d 1145 (10th
Cir. 2010) (individualized memorial
crosses for state troopers on public roadside land unconstitutional) cert. denied, 132 S. Ct. 12 (2011); Separation of Church
& State Comm. v. City of Eugene of Lane Co., State of Or., 93 F.3d 617 (9th
Cir. 1996) (war memorial cross erected by
private group in public park unconstitutional); Gonzales v. N. Twp. of Lake County, Ind., 4 F.3d 1412 (7th
Cir. 1993) (war
memorial crucifix in public park unconstitutional because it is “permanent government speech in a prominent public area
that endorses religion”); Am. Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., 698 F.2d
1098 (11th
Cir. 1983) (cross erected by private group on public land unconstitutional); Jewish War Veterans of U.S. v.
United States, 695 F. Supp. 3 (D.D.C. 1988) (war memorial cross on military base unconstitutional “because it conveys a
message of endorsement of Christianity”); Greater Houston Chapter of ACLU v. Eckels, 589 F. Supp. 222 (S.D. Tex.
1984) (three crosses and Star of David war memorial in public park unconstitutional because “[t]hese permanent symbols
become state symbols when placed in a public park, and they convey purely religious messages”). See also Allegheny at
599 (noting that allowing a private group to erect a cross in a courthouse even on a temporary basis would clearly violate
the Establishment Clause).
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of those who have not chosen those religions, relegating them to second class citizen status.4 It sends
the message to those who see it that the government thinks that only Christian and Jews matter to it.5
When the state prefers Judeo-Christianity in this way, it not only betrays those of its citizens who are
not followers of those religions, it violates the separation of church and state, a value held dear by the
founders of our nation and enshrined as a fundamental right in the Constitution they drafted.
Individual soldiers may of course be buried in a grave marked by a headstone bearing a
symbol representing their beliefs if they so choose. The small crosses, Stars of David and other
religious symbols marking individual military graves, such as are found in Arlington National
Cemetery or dotting the distant European fields of battle where the numerous fallen of the First and
Second World Wars lie, are unlike a memorial that purports to speak for larger groups of a war’s dead.
Such small individual symbols at a burial site are each the “marker of an individual grave” and “not a
universal monument to the war dead.” Trunk at 1113. In its context, such a cross speaks only for the
individual buried there, not for the state as a whole. In fact, among the crosses one finds the varied
symbols of a great variety of religious and philosophical beliefs, including those of humanists and
other atheists.6 A group memorial prominently incorporating a particular religion’s symbol, however,
“carries an inherently religious message and creates an appearance of honoring only those servicemen
of that particular religion.” Id. at 1110 and 1102. This is a betrayal not only of other soldiers but of
one of our deepest American values: that we are all, regardless of our opinions on matters of religion,
equal citizens served by a secular government.
As the Ninth Circuit Court of Appeals (which includes California within its jurisdiction) noted
in finding the Mt. Soledad war memorial cross in San Diego unconstitutional, “there are countless
ways that we can and should honor [veterans], but without the imprimatur of state-endorsed religion.”
Trunk at 1102. An appropriate war memorial honors all of the soldiers who fought and died, not just
those who professed a particular favored religion or religions. The government must not, and cannot,
make the rest of its veterans symbolically disappear, or imply that their patriotism or willingness to
sacrifice is suspect, by choosing the symbol of a particular religion to represent them all.
In light of the clear command of our Constitution that the state must remain secular, the City is
constitutionally forbidden to finance or display the proposed Memorial. If you insist on disregarding
your duty to follow the Constitution, litigation may be necessary to compel you to do so. As you may
know, a federal statute, 42 U.S.C. §1983, provides a means for suits seeking to protect civil liberties
rights to be brought in a federal court, which as a remedy for unconstitutional state conduct may issue
an injunction, award damages and provide for the payment of attorney’s fees and costs to a prevailing
plaintiff.
It is not too late, of course, for the City to change the Memorial so that is completely secular in
nature. Consider the powerful secular memorials on our national Mall in Washington, which
4 See Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring, stating that “[e]ndorsement [of religion
unconstitutionally] sends a message to nonadherents that they are outsiders, not full members of the political community,
and an accompanying message to adherents that they are insiders, favored members of the political community”; this view
was adopted by the Supreme Court as a whole in Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309-10 (2000)). 5 In fact, the number of secular Americans is increasing rapidly. According to a Gallup survey dated May 27, 2012, a
third of Americans are nonreligious (i.e. those who describe religion as not being “an important part of their daily life” and
who “seldom or never attend religious services”) and large numbers are also members of minority religions. 6 To see the great variety is use, including those for nonbelievers, visit http://www.cem.va.gov/hm/hmemb.asp.
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powerfully evoke and commemorate the sacrifice of the soldiers of the Second World War and the
Korean and Vietnam wars, all without divisive religious imagery.
When considering this matter, you will likely hear from a loud and self-righteous portion of
the populace that seeks to see its particular religious symbols preferred by the state, basking in the
reflected glory of fallen soldiers.7 They will interpret any withdrawal of a privileged place for their
religion as hostility to it. Such people misunderstand the Constitution’s command that government
remain secular. A secular government is not hostile to religion, but simply remains neutral so as to
protect the religious liberty of all.
The law, and therefore your duty as public servants, is clear. I trust that you will have the
courage to do what is right. Please notify me in writing of your decision with regard to the Memorial.
If you would like to discuss this important matter further, please do not hesitate to contact me at (202)
238-9088 or [email protected] at any time.
Sincerely,
/s/ William J. Burgess
William J. Burgess
Appignani Humanist Legal Center
American Humanist Association
7 Although I doubt that a majority of City residents want to see their government entangled with religion, even if they do
the very nature of the democracy established by our Constitution is such that, although the will of majority generally
governs, our fundamental civil rights and liberties are not put to a vote. See West Virginia Bd. of Ed. v. Barnette, 319 U.
S. 624, 638 (1943) (stating that “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as
legal principles to be applied by the courts”). The Establishment Clause protects just such a fundamental right that is not
subject to the supposed will of the majority. See e.g. McCreary County v. ACLU of Ky., 545 US 844, 884 (2005) (stating
that courts “do not count heads before enforcing the First Amendment”).