court found that the symbols violated both the purpose and effects tests of Lemon. 589 F. Supp. at 234-35.
While federal courts for the most part have stopped short of holding the use of religious tools where secular ones will do unconstitutional per se, it seems fair to say that the needless use of means that are inherently religious makes a message of endorsement likely if not unavoidable. The 65-foot lighted cross on Bordelon Field at Camp Smith may fairly be considered to convey a message of governmental endorsement of Christianity. The use of a cross as a memorial to fallen or missing servicemen is a use of what to some is a religious symbol where a nonreligious one likely would have done as well. The Court is constrained to find that cross cannot satisfy the secular effect prong of the Lemon test because it conveys a message of endorsement of Christianity.
c) Excessive entanglement
The final element of the Lemon test focuses on government entanglement with religion. Entanglement can take many forms, but only one entanglement doctrine is relevant to this case: a statute or government act is more likely to be found unconstitutional if it generates religion-based political division.
"[W]hile the prospect of such divisiveness may not alone warrant the invalidation of state laws that otherwise survive the careful scrutiny required by the decisions of this Court, it is certainly a 'warning signal' not to be ignored." Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 797-98, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1973) (quoting Lemon, 403 U.S. at 625 (1971) (Douglas, J., concurring)).
The record demonstrates that the cross at Camp Smith has caused some polarization of the community. Commandant Kelley reported that emotions were running high. Suits were filed on both sides of the issue in Hawaii. The Marine Corps reported receiving 3,200 written communications favoring the cross, and one against.
d) Departures from the Lemon test
The Supreme Court has departed from the Lemon framework in Marsh v. Chambers, 463 U.S. 783, 77 L. Ed. 2d 1019, 103 S. Ct. 3330 (1983), and Larson v. Valente, 456 U.S. 228, 72 L. Ed. 2d 33, 102 S. Ct. 1673 (1982). Marsh upheld the Nebraska Legislature's employment of a Presbyterian minister as the official legislative chaplain to give an opening prayer at each state legislative session. The Court relied primarily on history and tradition as well as the Framers' intent as bases for its holding. The cross at issue in this case does not meet the threshold requirements for this "historical" test under the Establishment Clause; the government does not even suggest that the use of the cross in this manner is "deeply embedded in the history and tradition of this country", Marsh, 463 U.S. at 786, or interwoven into "the fabric of society." Id. at 792. The defendants make no Free Exercise argument for the cross; instead, they argue that the cross is devoid of religious meaning in this context, or that any religious meaning is de minimis.
Larson v. Valente involved a Minnesota statute which denied an exemption from certain registration and reporting requirements to religious organizations receiving more than fifty percent of their charitable contributions from nonmembers. The Supreme Court held that a statute such as that one which explicitly discriminates among religions "must be invalidated unless it is justified by a compelling governmental interest and unless it is closely fitted to further that interest." 456 U.S. at 247 (citations omitted). In light of the Court's analysis under Lemon, however, it is unnecessary to reach plaintiffs' claim that the cross at Camp Smith discriminates on its face among religions and should be subjected to strict scrutiny.
Summary judgment is appropriate if no genuine issues of material fact remain for trial. Fed. R. Civ. P. 56. While the record before the Court is not devoid of disputes, none is material to the ruling that the cross violates the Establishment Clause. The principal symbol of Christianity, this nation's dominant religion, simply is too laden with religious meaning to be appropriate for a government memorial assertedly free of any religious message. While the Court is unwilling to say that a Latin cross is ipso facto unconstitutional, it is constrained to find its use inappropriate in this case.
The Court shall enter summary judgment for plaintiffs and a permanent injunction. However, in view of the fact that the cross has stood for 22 years, the Court shall briefly stay its order that the cross be removed. The stay, which shall expire 60 days from the entry of this Memorandum Opinion and Order, is designed solely to give defendants an opportunity to seek a further stay from an appellate court pending appeal.
An appropriate Order accompanies this Memorandum Opinion.
DATED: August 30th, 1988
ORDER AND PERMANENT INJUNCTION - August 30, 1988, Filed
Upon consideration of plaintiffs' Motion for Summary Judgment, defendants' Motion to Dismiss or for Summary Judgment, supporting and opposing memoranda, and the entire record herein, and for the reasons set forth in the accompanying Memorandum Opinion, it is this 30th day of August, 1988,
1) plaintiffs' Motion for Summary Judgment is granted;
2) defendants' Motion to Dismiss or for Summary Judgment is denied;
3) defendants shall remove the cross on Bordelon Field at Camp H.M. Smith in Hawaii; and
4) the order to remove the cross is stayed for 60 days from the entry of this Order. At the conclusion of 60 days, if no stay has been granted by an appellate court, defendants shall remove the cross forthwith.