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A Victory for Veterans

Veterans have fifty new reasons to rejoice this Veterans Day. Following months of contentious litigation, on October 19, 2011, the U.S. Department of Veterans Affairs threw up its white flag. The federal agency charged with overseeing the 131 national cemeteries where America’s fallen heroes are laid to rest agreed to make sweeping changes to national and local policies to bring them in line with the First Amendment.

By court order, the V.A. must to abide by fifty provisions contained in a consent decree. It requires the Houston National Cemetery veterans’ chapel to remain open, forbids the government from interfering with the religious speech of our veterans and volunteers, and, most importantly, allows veterans’ families to hold funeral services without restrictions on the content of speech, whether that speech is religious or secular.

It is an undeniable victory for the First Amendment, and for the veterans who valiantly fought to protect it, that the V.A.’s official policies will no longer permit either hostility towards religion or unlawful restrictions on speech. Our veterans and their families can now bury their loved ones at national cemeteries without governmental interference. The lawsuit rightly restores to veterans’ families decisions about the content of speech at committal services and dislodges such decisions from the federal bureaucracy.

The lawsuit, captioned Rainey et al. v. United States Department of Veterans Affairs et al., exposed the blatantly unlawful conduct of V.A. officials. Government employees had instructed local chapters of the Veterans of Foreign Wars and The American Legion, two volunteer veterans organizations that provide military honors at veterans’ funerals, to remove religious elements such as prayer from their almost century-old burial rituals. A cemetery employee told the VFW Honor Guard chaplain, an 84-year-old World War II veteran who faithfully served our country in Pearl Harbor, China, Vietnam, and Guam, that he could not utter the word “God” at funeral services.

Unfortunately, the V.A.’s hostility toward religion did not end with the veterans. A government official told the all-volunteer National Memorial Ladies that its members’ speech could not be religious. The volunteers were instructed to no longer use the commonplace expression “God bless you,” but to instead say “Peace be with you.” 

Additionally, a cemetery director, attempting to enforce an unconstitutional national policy, ordered a pastor to omit from his Memorial Day invocation all religious references that were “specific to one belief,” such as praying in Jesus’ name and reciting the Lord’s Prayer. -- The United States Supreme Court has unmistakably held that the First Amendment will not tolerate such viewpoint-based discrimination against private speech.

Officials shut down the Houston National Cemetery chapel, a place formerly used for committal services, prayer, and reflection. Additionally, V.A. employees stripped the chapel of its religious symbols, such as a cross and a Star of David, and newly consecrated it as a “meeting room” and “storage facility.” There was an undeniable pattern of opposition towards all things religious, in direct conflict with Supreme Court decisions holding that hostility towards religion violates the Establishment Clause of the First Amendment.

The most tragic consequence of the V.A.’s religious discrimination was that it harmed grieving families who wished to bury their loved ones according to their own religious convictions. 

One widow testified that a cemetery employee sought to restrict the religious speech of the VFW Honor Guard just moments before her husband’s funeral was about to begin. 

Another widow, whose husband served in the army for thirty years, held her husband’s funeral service at a nearby private chapel due to V.A. restrictions on religious expression. These grieving widows joined the lawsuit against the VA in hopes that no other family would have to endure such unwarranted governmental intrusion.

As a result of the lawsuit, our veterans can now enjoy the religious freedom secured by the First Amendment that they so bravely fought to protect overseas. Just as they have triumphantly fought for the cause of liberty abroad, our veterans will fight and overcome governmental intrusion on constitutional freedoms at home. This Veterans Day, our veterans can celebrate that both common sense and the Constitution have prevailed at their national cemeteries.

Kelly Shackelford, Esq., is president of Liberty Institute. Erin Leu is a constitutional attorney with Liberty Institute who represented Pastor Scott Rainey, the Veterans of Foreign Wars District 4, The American Legion Post 586, the National Memorial Ladies, and the families of fallen veterans in Rainey et al. v. United States Department of Veterans Affairs et al.