We’re not backing down
SKIP ASH, ACLJ
Recently, we shared that Attorney Donald G. Rehkopf and the inappropriately named Military Religious Freedom Foundation (MRFF) sent a formal complaint to Rear Admiral Paul D. Pearigen, MC, USN, because a Bible and a bi-lingual placard were part of the POW/MIA Display at the Marine Corps Base Camp Butler in Okinawa, Japan.
In response to MRFF’s initial complaint, as you know, we quickly sent a letter to Admiral Pearigen explaining why the passive presence of a Bible as part of a larger display with numerous non-religious items is clearly constitutionally permissible.
As you may recall, soon after Admiral Pearigen received our letter, he responded directly to Mr. Rehkopf and informed him that “the Bible and description of the POW/MIA remembrance table are consistent with DOD and DON guidance and with the Constitution.”
That should have put the issue to rest. But then this happened. Mr. Rehkopf and the MRFF were not at all pleased with the Admiral’s response.
They were so displeased, in fact, that Mr. Rehkopf sent a second letter to Admiral Pearigen demanding the following:
[I]f after consulting with your Staff Judge Advocate, you deem the Bible and placard appropriate for a Missing Man Table (regardless of the fact that its creators never intended it to be there), MRFF demands that you order the display to be removed to the MCB Camp Butler Chapel. If not, they should be removed.
He even went so far as to instruct the Admiral to add religious texts of other religious groups, including religious texts from Islam, Hinduism, Buddhism, Shintoism, and Satanism, among others.
Though the MRFF is free to hold and argue its positions, as legally flawed as they may be, its relentless attacks on our military are troubling on so many levels. That is why we sent a second letter to Admiral Pearigen.
In our most recent letter, which we also sent to Richard V. Spencer, Secretary of the Navy, Admiral John M. Richardson, Chief of Naval Operations, and Vice Admiral James W. Crawford III, Navy Judge Advocate General, we first discussed our nation’s rich religious history and highlighted numerous examples of this.
- George Washington added the words “so help me God” to the Presidential Oath prescribed by Art. II, § 1, cl. 8.
- John Marshall opened the Supreme Court with the prayer, “God save the United States and this Honorable Court.”
- Congress, the day after it proposed the First Amendment, “requested the President to proclaim ‘a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God.’”
- As part of the first Thanksgiving Proclamation, President Washington, on behalf of the American people, devoted November 26, 1789 “‘to the service of that great and glorious Being who is the beneficent author of all the good that is, that was, or that will be.’”
- “The same Congress also reenacted the Northwest Territory Ordinance of 1787, 1 Stat. 50, Article III of which provided: ‘Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.’”
- President John Adams wrote to the Massachusetts Militia, “we have no government armed with power capable of contending with human passions unbridled by morality and religion. . . . Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
- And even Thomas Jefferson and James Madison, two foundational figures quoted often in opposition to interaction of religion and government, called upon God as the founder of the world and guardian of the nation in their inaugural addresses.
- Congress also promoted religion by sponsoring the publication of the Bible and granting public lands to advance Christianity among the Indians.
We then explained that even government-sponsored displays with religious content are not unconstitutional so long as the religious elements of the display are part of a larger expression—which exactly describes the POW/MIA display in question. We wrote:
The Supreme Court of the United States has upheld the constitutionality of government displays that include religious components. In Lynch v. Donnelly, the Court upheld the constitutionality of a display that included a government-erected crèche because it was a part of a larger holiday display in which there was a variety of secular symbols.
We also pointed out that, in specific instances, government-sponsored displays containing religious content may be prohibited on public property. They may be prohibited when the religious items stand alone and are not part of a display with non-religious items (which is just the opposite of the POW/MIA display the MRFF is complaining about). We explained:
In County of Allegheny v. ACLU, the Supreme Court clarified the law regarding holiday displays with religious content, holding that the context of the display is key. In Allegheny, the Court examined two holiday displays on government property: 1) a crèche bearing a banner that proclaimed “Glory to God in the highest,” standing alone on the Grand Staircase of the county courthouse; and 2) a menorah displayed as part of a larger winter holiday exhibit in front of the City-County building, which included a Christmas tree and a sign saluting liberty.
The Court held that the crèche display violated the Establishment Clause, but that the menorah and Christmas tree display did not. In applying Justice O’Connor’s endorsement test, the Court focused on content and context, examining the physical setting of the displays. “The government’s use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government’s use of religious symbolism depends upon its context.” The appropriate standard for judging the context of the display was what a reasonable observer would think.
Applying this standard to the crèche, the Court determined that it sends an unmistakable religious message. “The crèche stands alone” such that “nothing in the context of the display detracts from the crèche’s religious message.” The crèche’s location on the Grand Staircase, the main and most beautiful part of the building, was also problematic since “[n]o viewer could reasonably think that it occupies this location without the support and approval of the government.”
We, however, pointed out that:
The instant matter is easily distinguishable from the crèche issue in County of Allegheny since the Bible in no way comes across as the primary symbol in the POW/MIA display, as evidenced by the fact that it is but one of a number of passive, non-religious items. The context minimized the impact of the Bible to the display as a whole.
Lastly, with respect to privately-sponsored displays with religious content on government property, we explained that the Establishment Clause does not forbid all private religious displays on government property, and that the First Amendment actually protects the right of citizens, civic groups, and churches to erect religious-themed displays in public areas where private non-religious displays are permitted.
As you can tell, the purpose of our second letter was not only to respond to Mr. Rehkopf’s latest demands, but it was also to provide a much broader overview of these types of issues such that those in leadership would be better equipped to handle such matters in the future.
In our conclusion, we suggested once again that a higher echelon of the Navy deal with the MRFF and its attorneys from now on since that would free Admiral Pearigen and others from having to respond again and again to the MRFF’s personal attacks.
Our second letter to Admiral Pearigen is another example of why your support to the ACLJ matters. At the ACLJ, we don’t just talk about protecting the First Amendment rights of our soldiers, we take action. And we’re not done. We are currently finishing yet another letter dealing with these and other military-related issues.
We stand together in support of our troops and their First Amendment rights.
Robert W. “Skip” Ash is a Senior Counsel at the ACLJ and at the ECLJ. Ash heads the ACLJ’s national security practice. As such, he deals daily with legal issues concerning Believers in the U.S. Armed Forces, with issues regarding the Law of Armed Conflict worldwide, with issues before the International Criminal Court, with issues before the United Nations and its agencies, and with issues before other international courts in Europe. Ash is a graduate of the U.S. Military Academy, who served 22 years on active duty as a U.S. Army officer. His service included serving as NATO desk officer in the War Plans division of the Army Staff as well as a military strategist for the Secretary of Defense in the Office of the Assistant Secretary of Defense for Strategy and Plans in the Pentagon. Ash is also one of the founders of the Centre for the Study of Law & Public Policy at Oxford. He currently serves as Secretary of the Centre at Oxford. A graduate of Regent University School of Law, Ash has also served as a member of the faculties of the School of Law and the Robertson School of Government at Regent University where he taught courses on national security law, public international law, comparative law, First Amendment law, business associations, and legal research and writing.
Used with the permission of the American Center for Law and Justice.