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Friend of the Court

Legion’s amicus curiae briefs center on values, veterans, Scouts and imposters. Recent rulings lean favorable.


The American Legion is well recognized for its influence on Capitol Hill. Through the decades, Legionnaire lobbyists have helped preserve veterans benefits in times of fiscal crisis, and pushed lawmakers, as well as the White House, to ensure that former military personnel and their families receive services and opportunities worthy of their sacrifices.

The Legion has marched boldly into battle for such values as flag protection, a well-funded military and relief for the caregivers of severely wounded veterans.

Less well-known than the Legion’s accomplishments in the legislative and executive branches of government is its role in the judicial branch. Through the filing of amicus curiae – friend of the court – briefs, The American Legion weighs in on cases central to the organization’s resolutions and values. In recent years, the Legion has filed friend-of-the-court briefs on cases related to such issues as freedom of religion, military recruiting practices, Boy Scouts of America and the integrity of military medals.

“Through filing these briefs in federal courts, we are able to express how important these issues are to veterans,” American Legion National Judge Advocate Philip B. Onderdonk says. “We have a solid team of attorneys across the country who respect The American Legion and veterans enough to want to write amicus briefs on our behalf.”

The following spotlight some of the more recent cases, the Legion’s amici curiae, and how the courts have ruled.

Rumsfeld v. FAIR | U.S. Supreme Court (2005)
Military Recruiting at Public Universities
Under a law known as the Solomon Amendment, the federal government could withhold funding from public universities refusing access to military recruiters.  Many universities had done so on the basis of the military’s policy excluding open homosexuals from service. Law schools in particular excluded recruiters from on-campus events, viewing the policy as discriminatory.

The Legion’s amicus: The military’s ability to recruit highly qualified officers, including judge advocates, from diverse backgrounds is inextricably bound with its ability to provide a strong, competent military, able to protect the national security of the United States. Effective officer recruiting depends on equal access to the men and women of our colleges and universities.

The civilian-military gap has widened at many colleges and universities since the time of the Vietnam War. However, some modern-day academics continue to understand the value of training citizen-soldiers, including as a means to counter an objectionable law or policy. The co-chair of Columbia University’s Task Force on ROTC, for example, said in support of an ultimately unsuccessful resolution to re-establish the ROTC on campus that the “most powerful agent of change we can provide is Columbia-educated leaders for the military .... You cannot effect change without engaging an issue. Universities are vital when they educate and irrelevant when they boycott.”

How the court ruled: The court unanimously agreed with the Legion’s position. In an opinion authored by Chief Justice John Roberts, the government could deny federal funds to schools that do not permit military recruitment. Through the “raise and support Armies” clause of the Constitution, Congress could require including recruiters in on-campus events without violating First Amendment rights of free speech and association. Justice Roberts wrote that “a military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiters’ message.”

 

Elk Grove School District v. Newdow | U.S. Supreme Court (2004)
Constitutionality of “Under God” in the Pledge of Allegiance
The phrase “under God” was incorporated into the Pledge of Allegiance on Flag Day, June 14, 1954, following the passage of legislation signed by President Dwight D. Eisenhower. Nearly a half-century later, Michael Newdow, the atheist father of a student in the Elk Grove School District in California, filed suit in federal court alleging that even voluntary recitation of the Pledge violated the First Amendment’s preclusion of endorsement of religion by the state. The Ninth Circuit agreed, and the case was appealed to the Supreme Court.

The Legion’s amicus: The conclusion that the school district’s policy impermissibly coerces a religious act is founded upon the erroneous premise that the Pledge of Allegiance is the equivalent of a prayer. But the pledge is not a prayer. Its recitation is no more a religious act than such other acknowledgments of this country’s religious heritage as the national motto (“In God We Trust”), the references to the Creator in the Declaration of Independence, or references to God in “The Star-Spangled Banner.”
The Pledge of Allegiance has the secular purpose of promoting patriotism. Even with the words “under God,” it is not an endorsement of religion. To the contrary, it has been characterized by the Court as consistent with the establishment clause. Nor does the school district’s policy of voluntary pledge recitation in classrooms lead to excessive government entanglement with religion.

How the court ruled: The Supreme Court dismissed the case on the issue of “standing,” since as a noncustodial parent, Newdow was not entitled to file suit on behalf of his daughter. A later lawsuit – Newdow v. Carey in the Ninth Circuit – held that teacher-led recitation of the Pledge of Allegiance by students in public schools was constitutionally permissible.

 

San Diegans for the Mount Soledad National War Memorial v. Paulson | U.S. Supreme Court (2006)
Constitutionality of a Latin Cross as War Memorial
First built in 1913, and rebuilt twice, the Mount Soledad cross is a 29-foot-tall Latin cross that towers over San Diego. Though it is designated as a national war memorial, the cross has been the focus of legal controversy, with various litigants arguing that its presence on federal land violates the First Amendment of the U.S. Constitution and the “no-preference clause” of the California Constitution by demonstrating preference to a specific religion.

The Legion’s amicus: The Mount Soledad cross has stood as a veterans memorial for more than 50 years. Today, the memorial is accompanied by more than 1,600 plaques bearing names, messages and etched images of veterans. A U.S. flag stands at the memorial, paying tribute to the cause of freedom. Brick pavers bear additional messages honoring veterans and supporters of Mount Soledad. This collection of messages honoring our nation’s heroes, accompanied by the memorial cross, sends a diverse message of appreciation for the gallantry and patriotism of those who gave their lives for the rest of us. Veterans throughout the nation’s history have sacrificed their lives for something greater than themselves. The Mount Soledad Veterans Memorial honors that sacrifice.

How the court ruled: The case continues. In Paulson, even though the Supreme Court stayed the order of the Ninth Circuit to move or destroy the memorial, a subsequent hearing by the Circuit Court once again held that it violated the establishment clause, and refused hearing by the full Ninth Circuit. It is expected that the case will once again reach the Supreme Court, where it will be heard in full on the merits of the constitutional question. However, in a similar case dealing with a veterans memorial cross in the Mojave Desert, the Supreme Court ruled that a transfer of the cross and the land was permissible. 

 

Henderson v. Shinseki | U.S. Supreme Court (2010-2011)
Post-Traumatic Stress and VA Appeals Deadlines
When Korean War veteran David Henderson missed a 120-day deadline to appeal a decision by VA’s Board of Veterans Appeals, he was told that his case would not proceed. His representatives admitted that the deadline had passed, but pointed out that he was appealing a case involving mental health conditions, including PTS, which caused him to miss the deadline.

The Legion’s amicus: Veterans diagnosed with post-traumatic stress often suffer significant impairment in their ability to perform at their jobs and in social settings. As VA has explained, the condition can substantially disrupt the lives of veterans, “making it hard to continue with ... daily activities.” Hence, it comes as no surprise that some veterans fail to file appeals of final agency decisions by the Board of Veterans Appeals in a timely fashion, given their “diminished responsiveness to the external world.” In clinical terms, this is described as “psychic numbing” or “emotional anesthesia.” Indeed, veterans seeking benefits for service-related disabilities may be especially averse to pursuing an appeal if denied assistance,  “to avoid situations ... that trigger memories of the traumatic event (and) avoid talking or thinking about the event.”

Hundreds of thousands of veterans return from service bearing the emotional and psychological scars of their combat experiences. Unless the Court overturns the federal circuit’s unbending ruling, those veterans with the most debilitating service-related disabilities will be at greatest risk of losing judicial review of a denial of their federal benefits.

How the court ruled: The Supreme Court agreed with The American Legion, and noted that “provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.” The 120-day deadline was thus ruled an important procedural guideline, but not so rigid as to be followed in all cases, regardless of any mitigating circumstances.

 

Winkler v. Rumsfeld | U.S. Court of Appeals, Seventh Circuit (2007)
DoD Involvement in the National Scout Jamboree
American Legion posts sponsor more than 2,500 Scouting units across the country. The relationship between the two organizations extends back to 1919, when support for the Boy Scouts was among the first resolutions passed by The American Legion. When the Scouts were sued for not allowing an openly gay man to serve as a leader and the Scout Oath was questioned because it references God, the Legion argued that with the right to associate freely came the right to not associate with those who do not ascribe to the religious basis for the group. In Winkler, the Supreme Court was tasked with deciding whether this religious basis for Scouting, and DoD participation in the National Scout Jamboree at Fort A.P. Hill, violated the constitutional imperative that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.”

The Legion’s amicus: The case presents a grave challenge to any voluntary organization. It is a case about the freedom of association, masquerading as a case about the establishment of religion. For if the acknowledgment of God is deemed sufficient to adjudge the Boy Scouts ineligible for nonreligious support from the military, consistent with the military’s own recruitment, public relations and training goals, then any number of other voluntary organizations with theistic roots will be equally affected. If allowed to stand, the decision of the district court would greatly limit the fundamental liberty of a voluntary organization to endorse traditional American values without suffering a governmental penalty because of its viewpoint. Thus, this case is, in the end, about the core American virtues of freedom to speak and freedom to associate – the very freedoms that Legion members fought to preserve through their wartime service.

The bulk of the message sent by the military’s presence at the National Scout Jamboree is about the military’s own public relations and recruitment interests. Any even implicit endorsement of the Boy Scouts would necessarily and primarily be understood to endorse the civic and patriotic aspects of the organization. Given the multiple attenuated steps between authorizing (though not requiring) support for the jamboree, finding implied support of the limited religious component of the Boy Scouts’ principles, and any actual effect of promoting religion, such effect would certainly not be the primary effect of DoD’s activities.

How the court ruled: The U.S. Court of Appeals determined in April 2007 that the Rev. Eugene Winkler had no legal standing to bring the suit in the first place, thus ending it and affirming that the military may assist future jamborees, including providing campsites at Fort A.P. Hill. Although the court did not address the broader implications of the constitutional question, the Boy Scouts announced shortly after the ruling that it intended to choose a new site for national jamborees.

 

Snyder v. Phelps | U.S. Supreme Court (2011)
Funeral Protests and Tort Law
The Westboro Baptist Church of Topeka, Kan., believes that God has damned the United States for its acceptance of homosexuality. In an effort to convey its message in a manner meant to inflame debate, church members appear at funerals for fallen military personnel and other high-profile figures, and display signs bearing such slogans as “God Hates Fags” and “Thank God for Dead Soldiers!” Albert Snyder was the father of Marine Lance Cpl. Matthew Snyder, who was killed in 2006 while serving in Iraq. After the Westboro Baptist Church protested at his son’s funeral in Westminster, Md., Snyder filed a civil lawsuit on the grounds of intentional infliction of emotional distress, a state tort. A lower court ruled in favor of the father and awarded $10.9 million in damages. However, that ruling was overturned at the circuit court level. The Supreme Court took the case to decide if state civil remedies were available for Snyder, and whether or not those remedies violated the First Amendment.

The Legion’s amicus: Funerals are at least as sensitive and historically sacrosanct as homes and hospitals. As the Court has recognized, “burial rites and their counterparts have been respected in almost all civilizations from time immemorial,” long before the First Amendment.

By the reasoning of the Fourth Circuit, these laws – and similar regulation of funeral picketing under state tort law – are unconstitutional. But as this Court has recognized, highly targeted picketing is not pure speech. And it is of no moment that the restrictions at issue are imposed by tort law rather than by ordinance.

How the court ruled: The Supreme Court held by an 8-1 margin that Snyder was not entitled to a civil award, holding that the First Amendment protects from tort liability those who stage peaceful protests on matters of public concern near the funerals of military personnel. Justice Samuel Alito dissented and agreed with The American Legion.

 

United States v. Alvarez | U.S. Supreme Court (2012)
Constitutionality of the Stolen Valor Act
Falsely claiming to have earned military medals is nearly as old as military medals themselves. 

In an effort to curb the rampant fraud known as “stolen valor,” Congress passed a law in 2005 to address the unauthorized wearing, manufacture or sale of any military decorations and medals.  Xavier Alvarez, a member of a California water board, claimed in a public hearing, “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.” Alvarez had, in fact, never served in the U.S. Armed Forces and was charged under the Stolen Valor Act (SVA). The question before the Supreme Court is whether or not the SVA violates the First Amendment.

The Legion’s amicus: That these lies are punishable is entirely appropriate. Persons who fraudulently claim military medals steal from a centuries-old store of goodwill built by the sacrifice of America’s soldiers. When they lie, imposters reap substantial benefits, including increased social and political standing, honor and even financial rewards. For those who have received military honors, as well as for the families of those who paid the ultimate price for freedom, the effect of such fraudulent claims is devastating.
The First Amendment does not bar the United States from punishing imposters who lie about receiving military medals. This Court has repeatedly stated that false statements of fact, standing alone, deserve no First Amendment protection. Lies about receiving military medals fit squarely within the category of unprotected speech, and have been subject to censure since the founding moments of our nation. None other than George Washington warned, “Should any who are not entitled to the honors have the insolence to assume the badges of them, they shall be severely punished.”

How the court ruled: The Supreme Court will hear this case in 2012 on appeal from the Ninth Circuit, which held that the Stolen Valor Act violates the Constitution.

 

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