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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 particularlyclose 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 amessage 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 itspolicies and actions, the Supreme Court has had occasion to consider cases involving religious

monuments on public land. In doing so, the Court has neverupheld 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 caserelated to the Pendleton Cross.

The court in Trunkrejected 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 Christianityand an attempt to label it as a war memorial does not change this. Id. A cross is nota broadly-

understood . . . 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 wassurrounded by secular displays honoring military service. Even given this somewhat mitigating

context, however, the court concluded that cross memorial was a predominantly religioussymbol 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 historicalelements 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, isinsufficient to render the Memorial constitutional. A cross memorial sends a message of

religious endorsement, not simply secular memorialization. Id.at 1118. This strong message ofendorsement [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 statingthat 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

2In 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 (10

thCir. 2010).

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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 state-

endorsed 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 thisconstitutional violation and avoid any potential litigation.

Sincerely,

William J. Burgess

Appignani Humanist Legal CenterAmerican Humanist Association