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William Burgess (D.C. Bar No. 473101) E: bburgess@americanhumanist.org 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 E: djpkaplc@me.com 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 ) Case No.: ) ) ) VERIFIED COMPLAINT FOR Plaintiffs, ) EQUITABLE RELIEF AND DAMAGES ) 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, ) AMERICAN HUMANIST ASSOCIATION, JOHN LARSEN and DIANA HANSEN, Defendants.
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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


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1.
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This action challenges the constitutionality of the Citys design, approval,

funding, construction, ownership, maintenance and prominent display of a monument (the Cross Monument) depicting a soldier kneeling before a Christian
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cross as a violation of the separation of church and state required by (i) the
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Establishment Clause of the First Amendment of the United States Constitution, as


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applied to the City by the Fourteenth Amendment thereof, and (ii) the
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Establishment, No Preference and No-Aid to Religion Clauses of Articles I


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(Section 4) and XVI (Section 5) of the California Constitution.


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2.
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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 attorneys 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 courts 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 Defendants 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 Defendants 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 Councils 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 Citys 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 Councils 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 Committees 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 Citys Management Analyst Justin Carlson (Carlson) presented the Redesign Committees 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 Limebrooks 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 Limebrooks 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 dont 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, Im not going to sit here and wait for people to denigrate my beliefs, okay, and so Ill give them two weeks, you got your designs, come back in two weeks. If not, I dont 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 dont 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, its not allowed to be on there, by law? The city attorney answered: Its 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? Thats the way they come back and
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celebrate . . . Melendez responded: Well, thats 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 thats going to open us up to litigation, is that correct? 47. The city attorney responded: Its a publicly funded, it goes back to th e 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 Citys monument and the City Council could change the design however they pleased. 50. Melendez then made a new motion, stating: You know what, heres my motion to, I think at some point you have to take a stand. Im sorry, I just think you do. And Im 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, Were trying to do something nice here . . . weve made it a divisive element, it shouldnt be divisive . . . so my motion is we continue. 52. Magees 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. MAAFs letter included a picture of an alternate design, eliminating the cross but making no other changes, which noted that the Citys design was appropriate for church and that MAAFs 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. . . . Im 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 dont know where they came from. They must have came [sic] from a third world country . . . Thats not a political thing. Thats up there for civil war veterans, for whatever . . . They didnt hide behind some cockamamie outfit in Washington, D.C. . . . I for one, being a veteran, and theres 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 lifes about. He seconded Webers 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: thats 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 Rodriguezs 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 Defendants 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 Citys 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 Defendants 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. 4. A judgment in the Plaintiffs favor for nominal damages; 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 [picture of approved version of the Cross Monument]

Exhibit 4 [AHA letter]

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 AHAs 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,
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The very first sentence of the Bill of Rights mandates that the state be secular: Cong ress 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 Citys 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 (9th 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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

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 wars 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 religions 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 attorneys 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 Consider the powerful secular memorials on our national Mall in Washington, which

nature.
4

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See Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (OConnor, 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 commu nity; 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 Constitutions 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 bburgess@americanhumanist.org at any time. Sincerely, /s/ William J. Burgess William J. Burgess Appignani Humanist Legal Center American Humanist Association

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).

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