The prospect that, somehow, somewhere, the government will smile on something religious strikes more fear in some people than would a federal endorsement of binge-drinking.  Yet, despite the efforts of those obsessed with slippery slopes, zero tolerance, and political correction, Americans still have the right to worship or to mock, as their sensibilities direct.  To deny public funding of an “artist” that immerses a crucifix in urine is seen, by some, as censorship, yet the muzzling of the American Legion is not.  It all depends on whose speech is being gored.

At the State Bar Convention, in August, I had the opportunity of asking an attorney from the ACLU: “What’s wrong with putting a cross on a county seal?” The answer was that someone might be “offended”, as though the purpose of the Establishment Clause was to protect secular sensibilities.  This oppressive point of view led to the tearing down of the Mojave cross.  And, yet, Riverside’s own National Cemetery is home to thousands of crosses, Magen Davids, and other religious symbols on nearly every tombstone.  This brings us to the flag-folding ceremony.

I recently had to bury one of my friends there.  He was laid to rest with a solemn, moving flag- folding ceremony, performed by the American Legion.  In that ceremony, the American flag is folded thirteen times, in honor of the thirteen original American colonies.  Each fold is accompanied by a short, historical reference.  This ceremony was performed by an honor guard made up of American Legion veterans as a tribute to their fallen comrade. 

The American Legion performs the flag-folding ceremony hundreds of times a week at funerals throughout the nation’s 125 federal cemeteries.  During one of these funerals, someone found one of the folds to be offensive.  The Eleventh Fold represents the lower portion of the seal of King David and King Solomon, and glorifies the God of Abraham, Isaac, and Jacob.  The Twelfth Fold represents an emblem of eternity and glorifies God the Father, the Son and Holy Ghost.  Unfortunately, the offended party had enough influence to get the White House to direct the Department of Veterans’ Affairs to direct the Director of Cemetery Administration to direct the American Legion to quit performing the ceremony as of September 27 in the Year of Our Lord (Anno Domini) 2007. 

Charles Walters, the American Legion’s parliamentarian, is telling the group to ignore the government’s order: “There are twenty-six million veterans in this country and they’re not going to take us all to prison.” He’s right.  What is the penalty for recitation during a flag folding?  What gives the federal government jurisdiction over the American Legion?  What gives the government the right to forbid a religious ceremony? 

We know what gives the American Legion the right to perform that ceremony: it’s the First Amendment.  “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof”, says the Constitution.  The Executive Branch has the authority to issue directives to its various departments, but there can be no federal law punishing the American Legion for ignoring that directive.  And, if the American Legion is banned: that’s an Equal Protection problem.  The bereaved have- or should have- the right to hear the ceremony of their choice by the American Legion, if they so choose.  The law, then, should tell the thin-skinned to respect the sensibilities of the not-so-thin-skinned, living and dead.

To paraphrase Justice Abe Fortas’ reality-detached statement in Tinker v. Des Moines 393 U.S. 503 (1969): the bereaved do not shed their constitutional rights at the graveyard gate.  According to the Tinker court, students have a right to wear black armbands in class, yet, somehow, the American Legion must fold in silence or use a more sanitized ritual.  Flag-burning is protected speech, according to the court in Texas v. Johnson 491 U.S. 397 (1989).  Flag-folding, apparently, is not quite as protected.  Thanks to the intervention of former ACLU attorney (now anti-ACLU attorney) Rees Lloyd, Vice-president Dick Cheney had the order rescinded.  The free exercise of religion is, for the moment, safe behind its wall of separation.

Written by Richard Reed, Esq.