Crosses at Camp Pendleton Raise Constitutional Questions

A thirteen foot cross was erected on Veterans Day on a hill in Camp Pendleton as a memorial to Lance Cpls. Robert Zurheide and Aaron Austin and Majs. Douglas Zembiec and Ray Mendoza, four Second Battalion Marines killed in Iraq. After making a 3,00 foot climb, a group of fellow Marines, family members of the slain soldiers, and a retired Navy chaplain installed the cross. The group had not sought permission to do so. Another cross had been erected in the same location in 2003 by a group of Marines that included Zurheide, Zembiec, and Mendoza, but a brushfire destroyed it in 2007. A replacement appeared in 2008 so two crosses are now on the hillside, which cannot be seen from nearby Interstate 5. The LA Times reports that, over the last few years, the hill within the 125,000 acre facility has been used by Camp Marines as an informal memorial site, where they leave small tribute items, such as coins, medals, dog tags as well as battlefield sand, to honor comrades lost in action.

The Military Association of Atheists and Freethinkers has called for the crosses to be taken down, and the Commandant of the Marines and the Pentagon are now reviewing the situation. An editorial in the LA Times calls for the removal of the crosses and differentiates these structures from a white cross on the Camp’s northern end. The white cross is a historic marker commemorating where the first baptism in California is believed to have been performed in 1769.

In the LA Times, constitutional law professor and UC Irvine Law Dean Erwin Chemerinsky projected that a court would have to determine if a reasonable observer would perceive the crosses as endorsing Christianity or instead as simply memorializing those killed in action. Although Chemerinsky noted that, in his view, “a cross by itself on a military base” should be seen as an Establishment Clause violation whether a court would agree was far from certain. Earlier this term the Supreme Court declined to review a Tenth Circuit ruling finding that the use of large crosses as memorials for slain Utah State Troopers was an Establishment Clause violation. The case had been seen as an opportunity for the Court to revise or clarify its analysis of the use of religious symbols on government property.

JFB