The First Amendment to the US Constitution is familiar to most Americans. It guarantees the rights of free speech and religion, among other rights, for American citizens. The actual clauses of the First Amendment, however, may be less well known.
The Establishment Clause ensures that our government does not endorse any one religion over another. The Free Exercise Clause, on the other hand, allows for exemptions to laws based on religious beliefs and for religious reasons, even to generally applicable laws.
Barry Fagin, currently embroiled in a debate in Monument, Colorado about the constitutionality of a recently dedicated cemetery monument, is passionate about defending both sides of the argument.
He is an ACLU National Civil Liberties Award winner and a member of the Military Religious Freedom Foundation. He has been defending Americans’ freedom of speech and religion since he moved to Colorado Springs, almost 25 years ago.
Fagin started on his constitutional journey when he was a professor of computer science newly living in Colorado Springs.
From 1994-96, he and his wife Michelle became involved in the court case dealing with the Communications Decency Act, which attempted to restrict internet viewing.
The Fagins opposed the CD Act on the basis of unconstitutionality. Fagin felt that, in this changing world, he needed to step up to protect people’s freedom of speech.
His view was that the content of the internet should be open to all, as this was ensured by the First Amendment, as he saw it.
The opposing point of view was expressed by groups such as Focus on the Family, who wanted to protect children from inappropriate viewing.
The Fagins were asked to join the movement, Families against Internet Censorship. They traveled to Washington, DC to support the argument in front of the US Supreme Court. The final vote was 9-0 opposing censorship.
As a result of his efforts, Fagin was awarded the Civil Liberties Award from the ACLU.
He began writing columns for the Colorado Springs Gazette about the First Amendment.
Eventually, he connected with Mikey Weinstein, the attorney who founded the Military Religious Freedom Foundation. Fagin called their relationship a “good partnership.” For his efforts in arguing on behalf of Americans’ freedom of speech and religion, Fagin was awarded the Thomas Jefferson award from MRFF in 2009.
MRFF has recently made Fagin aware of a situation in Monument that involves the First Amendment.
A Boy Scout created a project to fulfill the requirements to become an Eagle Scout. He wanted to honor military veterans, especially his father and grandfather, and dedicated a memorial in the town cemetery.
The memorial bears the following inscription:
“Only two defining forces have ever offered to die for you: Jesus Christ and the American Soldier; one died for your soul, the other died for your freedom.”
Fagin knows that all Eagle Scout projects contain many layers of review. He feels that all the adults involved in this project “failed this young man badly.”
The inscription is offensive to non-Christians that may be buried in the Monument cemetery, he argues. But, Fagin writes, “even if everyone buried in Monument is Christian, what does it say to non- Christians who have lost loved ones in uniform?”
Jewish War Veterans of the USA has called for the removal of the memorial. The inscription not only does not honor all veterans, it is also sectarian on public land, implying that the US government endorses a certain religion, according to the JWV.
A second problem, according to Fagin, is that the memorial uses trademark logos belonging to the military that may only be used in certain circumstances. The logos may not be used “for any purpose intended to promote religious beliefs (including nonbelief).”
Since the memorial is on public land, Fagin calls it unconstitutional.
He predicts that, if Monument does not fix these problems, it will be sued by one or more First Amendment watchdog organizations, and that it will lose these lawsuits.
Since the publishing of Fagin’s column and MRFF’s involvement, Monument has responded by claiming that this part of the cemetery has been sold to the family of the Eagle Scout.
They claim that the memorial is now on private land, and as such, symbols pertaining to specific religions are allowed. (Religious symbols used on gravestones are acceptable; burial plots are considered to be privately owned.)
This memorial, however, is in a prominent section of the cemetery, and Fagin believes no one could be buried there.
In addition, Monument will not be allowed to maintain the land where the memorial lies if the land is under private ownership.
MRFF is poised to sue the town of Monument over this issue.
Fagin says that they will continue with this issue until Monument “does the right thing. “
He says, “when the First Amendment is threatened, on either side, I will speak out.”
Fagin believes that this Monument cemetery memorial is not a trivial matter:
“[Anti-Semitic] motivation does not start with gas ovens and yellow stars. It starts with little things. The First Amendment has to protect Jews and all religions.”
Copyright © 2021 by the Intermountain Jewish News