The opinion of the court was delivered by: HOGAN
THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE
Plaintiffs challenge the constitutionality of a Latin cross, 65 feet tall and brightly lit each night, serving as a war memorial at Camp H.M. Smith, a United States Marine Corps base in Hawaii. Unfortunately, the government's choice of the principal and universally recognized symbol of Christianity to achieve a secular goal cannot withstand Establishment Clause scrutiny in this instance. Accordingly, under Supreme Court precedent the Court is compelled to require that the cross be removed or replaced by a nonreligious symbol.
This action was brought by the Jewish War Veterans of the United States of America (JWV) and Maxwell Feuerman,
a JWV member who lives in Hawaii, against the United States government, the Secretary of the Navy, and the Commandant of the Marine Corps. Plaintiffs seek a writ of mandamus to the Secretary of the Navy to remove the cross forthwith and an injunction. The case is before the Court on cross-motions for summary judgment, which have been fully briefed and argued.
Camp Smith is on the island of Oahu in the suburbs of Honolulu in an area known as Halawa Heights. The base also is the headquarters of the Fleet Marine Force, Pacific. Base facilities include Bordelon Field, a sports and ceremonial field carved from the side of a mountain.
Near the center of Bordelon Field is the Latin cross at issue in this case. Its upright part is 65 feet tall and the transom part measures 35 feet across. It is lit from dusk until dawn by florescent lights. The parties do not agree about how visible the cross is to motorists on a nearby freeway, to ships at sea, and to such areas as Pearl Harbor, Pearl Ridge Shopping Center, and Aloha Stadium, but they do agree that the cross is a landmark visible beyond the confines of the Camp. The parties agree that Bordelon Field has been used as the site for religious services, but disagree about whether the cross has served as a backdrop for those services.
The principal disagreement, concerning the origin of the cross 22 years ago, arose only recently, after the Judge Advocate General of the Navy determined in late 1985 that the Establishment Clause compelled removal of the cross. The controversy resulting from that decision prompted a former Commanding General of the Fleet Marine Force, Pacific, Victor H. Krulak, to publicly review the history of the cross, which he said was built with a secular purpose as a Vietnam war memorial.
Plaintiffs rely on an account of the erection of the cross based largely on a March 22, 1979, news release of the Base Public Affairs Office, reproduced as Exhibit (Exh.) 2 to Plaintiffs' Motion for Summary Judgment.
The six-page release evidently is the basis for the other documents supporting plaintiffs' account, an October 11, 1985, Marine Corps memo (Exh. 8), a letter from the Commanding General to a Congressman dated May 27, 1981 (Exh. 9), and a letter from the Camp Commander to a Senator dated May 21, 1986 (Exh. 10).
According to this account, now discounted by defendants as inaccurate "folklore" and "misinformation," the cross was built in April, 1966, for Easter sunrise services to which the public was invited. Allegedly, the Catholic chaplain, Father Pius F. Keating, was the force behind the cross. According to the base maintenance electrician, Tony Clark, Keating "scrounged everything we needed to construct the cross. . . . Military buses from all branches of the service traveled to bases all over the island to transport more than 5,000 servicemen and women to the Easter sunrise service."
According to the news release, the cross remained lit throughout the night during the two-week Easter season; when Clark or another maintenance worker forgot to turn it on, citizens called wanting to know what happened to the cross. In fact, according to the news release, the cross evoked such a favorable reaction from the local community that it was decided to illuminate it year round.
In 1969, however, the Commanding General received an objection from a Jewish naval officer that the cross violated the doctrine of separation of church and state; as a result, the general directed that it be lit only during the Christmas and Easter seasons. According to the news release, that decision "ignited a fuse among local residents and they took their case to U.S. Senator Hiram L. Fong." The release quoted a letter to Fong characterizing the cross as "the landmark around which we've built our homes and our hopes." Despite the protests, the cross remained unlit except for the Easter and Christmas seasons for two years.
The cross was darkened in 1974 as a result of the energy crisis. The cross was lit only during Christmas and Easter until the crisis subsided; in 1975, nightly lighting resumed from dusk until dawn.
In early 1983 the original cross was destroyed by a fire traced to an electrical short. See Exh. 18. The Marines spent $ 13,000 in public funds to rebuild the cross, finishing the job on December 15, 1983. Said the Camp Commander in a congratulatory letter to the local commander of Navy Public Works: "The new cross is larger and much brighter than its predecessor. Being erected just before the Christmas season reflected superb timing. Its message and symbolism enrich relationships between the Camp and its surrounding community." (Exh. 14.)
On August 27, 1985, members of the Jewish Community Relations Council of the Jewish Federation of Hawaii met with the Camp Commander to raise Establishment Clause concerns. Two days later, the local Staff Judge Advocate submitted a memorandum to the Camp Commander, and on September 3, 1985, the Camp Commander submitted a memorandum to the Commanding General, Marine Corps Bases, Pacific, seeking advice. On October 21, 1985, the Commanding General requested a legal opinion from the Judge Advocate General of the Navy.
On December 6, 1985, Admiral T.E. Flynn, Navy Judge Advocate General, determined that the cross violated the First Amendment. General P.X. Kelley, Marine Corps Commandant, received a copy of the memorandum and wrote on the routing sheet: "And the cross came crashing down! Victory for the forces of evil."
On January 16, 1986, the Camp Commander forwarded a memorandum to the Commanding General stating his intention to remove the cross. Soon thereafter, the Commanding General ordered the cross removed. On May 2, 1986, the Hawaii congressional delegation, governor of Hawaii, and mayor of Honolulu were notified that the cross would be removed; they received advance word of the decision because of intense public pressure to retain the cross. On May 6, 1986, a news release was issued stating that the cross would be removed.
The Camp Commander set a date in June, 1986, for the removal, and in the interim ordered that the cross be lit only from dusk to midnight. However, a "tremendous outcry of public opinion, mostly in favor of keeping the cross, followed this decision" (Exh. 4), prompting the Camp Commander to suspend the removal until mid-July while the issue was debated at higher headquarters. As Commandant Kelley recalled, "emotions were running high." Kelley Deposition (Dep.) at 49-50. The Marine Corps received 3,200 written communications in favor of the cross, and one against.
Also in June, 1986, a group called Friends of The Cross, Inc., filed suit in United States District Court for the District of Hawaii concerning the constitutionality of the cross and whether it met the requirements for entry on the National Register of Historic Places.
On June 20, 1986, Krulak, in retirement, sent a letter to the Secretary of the Navy "setting the record straight" about the origin of the cross in 1986. Exh. B to Defendants' Opposition to Plaintiffs' Motion for Summary Judgment. Defendants have adopted the version of events set forth by Krulak, who was Commanding General from April, 1964, until June, 1968. The letter stated in part: "I had erected a memorial cross at Camp H.M. Smith to honor the men of my command who had given their lives in Vietnam. My purpose was to memorialize the sacrifice of all, as I made clear in dedicating the structure." Those who say the cross was erected as a "narrow secular symbol" are "wrong. They distort history," Krulak said.
"During late 1965, on a date I cannot specifically recall, I stated to my staff that some memorial to those members of the Fleet Marine Force, Pacific who had died in Vietnam should be erected at Camp Smith. I proposed no concrete ideas as to its form or location, other than that the memorial must be something recognizable as a symbolic monument to personal sacrifice, that it be placed in a prominent location, and that it be an enduring monument worthy of its purpose." Krulak Declaration (Decl.) para. 13.
Subsequently, the Camp Commander informed Krulak of a recommendation to erect a memorial in the form of a Latin cross on Bordelon Field overlooking the Honolulu area. Krulak said he was not given a number of options, but a single recommendation. "Since the plan effectuated my stated desire for a visible, recognizable, serious, and symbolic memorial, I approved it. The form chosen was a symbolic indicator of seriousness, but it was not chosen for the furtherance of any religious purpose, or the advancement of one religion over another. It was a recognizable, secular symbol of sacrifice, pure and simple." para. 15.
Krulak said he is certain the chaplain did not have a leading role in the memorial. He also is certain that the dedication of the memorial was not part of any religious service or holiday. "I cannot recall the memorial ever being used as a religious symbol, or in support of religious services or activities, for Easter or otherwise, during the time I commanded FMFPac [Fleet Marine Force, Pacific]." Id. para. 19.
Also submitted by defendants to rebut the March 22, 1979, news release of the Base Public Affairs Office is the declaration of Father Keating, dated July 6, 1987, stating that he was not even assigned to Camp Smith in 1966 when the cross was erected. He was assistant chaplain from July 21, 1961, to August 31, 1963, and stated that he has no memory of an electrician named Tony Clark, interviewed in the 1979 news release. Keating stated emphatically that when his assignment at Camp Smith ended no cross was permanently erected on Bordelon Field. The priest concluded: "I certainly do not oppose the presence of the Latin cross at Camp Smith. I wish I could take credit for its erection, but I can not do so, as I had no part in it." Keating Decl. para. 17.
On the basis of Krulak's June 20, 1986, letter to the Secretary of the Navy and unspecified additional research by the Marine Corps Judge Advocate General, Commandant Kelley on July 2, 1986, ordered that the cross remain standing as a memorial to servicemen missing in action or unaccounted for in Southeast Asia. The Commandant said the decision was based on "additional historical research into the origin and purpose of the cross" and he hoped it would serve as "a non-sectarian symbol of our national resolve to obtain a full accounting of American servicemen still missing or unaccounted for in Southeast Asia." Exh. 2 to Defendants' Motion to Dismiss or for Summary Judgment.
Kelley testified that he considered the Navy Judge Advocate General's opinion to have been overtaken by new factual information that had come to light. He did not refer the new information to the Navy's chief lawyer to see ...