MONUMENT • What started as boy’s Eagle Scout project intended to memorialize military veterans has become embroiled in a legal controversy.
The Military Religious Freedom Foundation founder and president Michael L. “Mikey” Weinstein has taken aim at the veterans memorial in Monument Cemetery, which was dedicated to the Town of Monument on Oct. 3. After reading about the memorial dedication in The Tribune, Weinstein wrote a letter to Mayor Don Wilson Feb. 23 taking issue with its message.
Weinstein, whose foundation has battled the military and the Department of Veterans Affairs over allegations of pro-Christian proselytizing in the ranks for decades, said he contacted the mayor on behalf of 12 families in El Paso County, eight of which reside in Monument.
Weinstein said the MRFF aims to provide “anonymity, action, results and protection” for those 12 El Paso County clients. He said the majority of them are Christians and some of them are faculty members at the Air Force Academy.
“They are terrified to come forward. They don’t want a target on their backs,” Weinstein said. “Should we proceed with the federal litigation, it would be visible and aggressive, very aggressive.”
The MRFF is an Albuquerque, N.M.-based civil rights advocacy organization which focuses its efforts on protecting the “Constitutionally-mandated wall separating Church and State in the U.S. Military, Veterans Administrations and U.S. Intelligence Agencies.”
The veterans memorial was designed by 16-year-old Michael Carlson, of Monument, a member Boy Scout Troop 8, as his Eagle Scout Project. It includes a sculpture of the Battlefield Cross, a small stone half-circle wall and a stone monument embedded with the six challenge coins bearing the emblems of the branches of the U.S. military and an 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.” Below this are the words, “We honor those who made freedom a reality.”
Carlson’s mother, Kathy Carlson, president of the VFW Auxiliary Post 7829 in Monument, said her son raised $50,000 in monetary and in-kind donations to build the memorial.
Weinstein, an Air Force Academy graduate who has in the past criticized the Academy on religious issues, took aim at the inscription in his letter.
“The obviously and incontrovertibly sectarian, Christian proselytizing message of that Veterans Memorial would be absolutely fine in a private cemetery, but in a publicly maintained and controlled cemetery, as in this instant matter, it is quite unconstitutional and illegal,” Weinstein wrote.
The letter claims the use of the challenge coins is in violation of Department of Defense trademark licensing guidelines. Weinstein cited Title 5 of the Code of Federal Regulations: “DoD marks may not be licensed for any purpose intended to promote ideological movements, sociopolitical change, religious beliefs (including non-belief), specific interpretations of morality, or legislative/statutory change.”
In the letter, he demands the town immediately remedy “these noxious unconstitutional and DoD regulation violations by either expeditiously removing that memorial or altering its current unconstitutional Christian proselytizing message to comply with the United States Constitution’s First Amendment (No Establishment Clause) and DoD regulations regarding trademark and licensing mandates.”
Failure to do so may result in litigation to enforce them, Weinstein wrote. He asked the mayor to advise within seven business days, but later said he didn’t hear back in that timeframe.
In March, the Carlson family bought the five cemetery plots on which the memorial stands, making them the owners of the memorial and the flagpole around which it was built.
In response, Weinstein wrote in a March 29 MRFF press release: “This secret sale of public land was hurried through to completion just 10 days ago on March 19, 2021, in an effort by the Town of Monument and/or others associated with this sordid unconstitutional matter to escape the dire consequences as defendants in a surefire Federal lawsuit brought by MRFF and its client complainants, most of whom live in the Town of Monument and are also practicing Christians.”
After the demand from the MRFF began to circulate, attorneys from First Liberty Institute reached out to the Carlson family. The nonprofit law firm is the largest legal organization in the nation dedicated exclusively to defending religious freedom. It offered to represent the Town of Monument and give guidance on how to respond to the “threat from Mr. Weinstein,” general council Mike Berry said.
The town accepted, and lead council Stephanie N. Taub sent a response to the MRFF calling for an apology to Michael Carlson and his family.
“The Eagle Scout intended to use his voice to honor all brave men and women who have served in our armed forces,” Taub’s letter said. “The memorial he created is privately designed, privately maintained, and located on private burial plots in Monument Cemetery.”
Weinstein said the sale of the plots on which the memorial stands came three weeks after MRFF’s demand letter was issued and an apology was not going to happen.
“We know its very much in a grey area as to what happened,” Weinstein said. “They didn’t deed over that property, they merely sold the rights to bury people there. That is a specious, disingenuous, dishonest, disreputable, reprehensible and wretched attempt to subvert one of the most basic freedoms we have in this country and rights to separate church and state.”
He said the Town of Monument was making it clear it supports “weaponized Christianity, at least this version of it.”
Berry said if the MRFF states there’s a violation of the “No Establishment” clause with the wording on the memorial, he finds it a “pretty laughable claim.”
“The government is the only entity that can violate the No Establishment clause,” Berry said. “Because this memorial was created and owned by a private citizen, they can’t violate the no establishment clause.”
Weinstein said he takes issue not with Michael Carlson, but the institutional failure which started with Carlson’s Boy Scout Troop and the Pikes Peak Council of the Boys Scouts of America. Given the process of an Eagle Scout project to get approval before proceeding, Weinstein said the Boy Scouts missed an excellent opportunity to educate about the separation of church and state. He said Carlson’s Eagle Scout project should not have been approved.
“This goes against the basic tenets of the Boys Scouts,” Weinstein said. “It is completely and totally sectarian. To the Pikes Peak Council and this particular Boy Scout troop, shame on you. How dare you. That poor kid probably didn’t know any better.”
Berry said he does not see any legal distinction that dictates what one family can put on a headstone of a plot in the cemetery or what the Carlson family has on the memorial, which rests on their five plots.
In fact, other headstones in Monument Cemetery include versions of the logos of U.S. military branches.
Not only is the MRFF looking to file a lawsuit but also it is “looking very closely at doing a couple of other things with regard to that cemetery,” Weinstein said, although he declined to give details.
No lawsuit had been filed as of this writing.
“It’s an attack on the Constitution and it’s being done in the most despicable manner ever by these tin-plated idiots running the Town of Monument,” Weinstein said. “By telling the Carlson family you can bury five people there for $4,000, that doesn’t change who owns that place.”
Berry said it is up to the Carlson family to decide what they want to do with the memorial, and that the Town of Monument and its Board of Trustees have no intent to remove it.
“This is a positive thing for the community, but it’s ultimately not the town’s call whether or not there will be alteration to it,” said Berry, a combat veteran. “As far as we’re concerned, there is no issue here. We applaud this young man for honoring our veterans. I certainly applaud him for using his Eagle Scout project as an opportunity to create something that appropriately honored our veterans there in the Town of Monument.”
Michael Carlson said he has no plans to make changes to the moment to satisfy the demands made by the MRFF.
“It’s perfectly fine the way it is,” he said. “I love it. I believe it could not be better than it is right now. The memorial is at its prime.”
The argument of institutional failure
Weinstein provided a letter from Sam Fairchild, a member of the Pikes Peak Council of the Boy Scouts of America’s advisory board who served as a senior advisor of transportation and energy for President Ronald Reagan’s administration.
In the letter, Fairchild stated the Boy Scouts authorities who approved the project are primarily at fault.
“Scout Carlson’s Eagle Scout coach, his Scoutmaster, his Eagle Scout Board of Review and his Scout council failed to ask him to correct two serious mistakes with his otherwise exemplary project,” Fairchild said. “All in all, this was a well-constructed, well-thought-out and well-executed Eagle Scout project, certainly with the attributes that would win its approval from the National Court of Honor.”
Weinstein said a second failure was the Monument Board of Trustees approving the design of the project, which happened July 20.
“The only difference from other monuments [for veterans] in the cemetery is that this was not for one specific individual,” Berry said.
The Carlson family said no one from the community expressed an objection to the inscription or the use of the military challenge coins.
Michael Carlson has not yet received his Eagle Scout rank, which has been delayed because of COVID-19 pandemic prevention measures; however, the controversy over his project could further delay receiving the rank.
“If they don’t give him his Eagle, if they think Weinstein is bad, I will be speaking at every place that will listen to me and I guarantee people will be outraged,” Kathy Carlson said.
It’s not just Weinstein who has taken issue with the memorial.
In a March 20 op-ed published in The Tribune’s sister paper, The Gazette, Barry Fagin, an ACLU National Civil Liberties Award winner and a recipient of the Thomas Jefferson award from the MRFF, wrote: “The cemetery memorial is, I believe, deeply and profoundly offensive to non-Christians buried there (if there are any). I hope it offends some Christians, too. But even if everyone buried in Monument is Christian, what does it say to non-Christians who have lost loved ones in uniform? No need to ask. The organization Jewish War Veterans of the USA has called for the memorial’s removal.”
He also wrote, “Fortunately, Monument can fix this mess. Replace the quote with a religiously neutral one. Have the town attorney crack open a first-year Con Law text and vet it. Get the permission of the Department of Defense to use their symbols. Then you’re good.”
The argument of DoD trademark violation
Regarding the complaint of prohibited use of military challenge coins, Weinstein said the MRFF contacted the Pentagon on the matter, having fought this issue previously “and we’ve never lost it.”
“You cannot use these logos for a specific partisan, political or religious reason,” he said. “Even if they put this monument on private property, it would still be violative of this basic DoD licensing trademark situation.”
In contrast, Berry said the emblems on the challenge coins are not prohibited and contests anyone who attempts to say the use of them is illegal.
“I find that to be a very dubious claim, because that’s not what the law of Department of Defense regulations say,” Berry said. “Those are, in fact, permissible emblems if they are used in an appropriate way, for non-commercial use.”
Berry said the only DoD emblems that are prohibited are the official seals of the individual military branches and the official seal of the Department of Defense.
“Those are the marks that are prohibited, whether it’s commercial use or non-commercial,” he said. “I don’t want to speculate what Mr. Weinstein knows to be true, but what I know is the official seal of the branches and the DoD are what are prohibited.
“When you look at the memorial in question, it doesn’t use those seals. It’s using the unofficial emblems. They are clearly permissible.”
Michael Carlson contacted the respective military branches to acquire permission to use the challenge coins, and got permission from the Army and Navy. Requests to the other military branches went unanswered, Carlson said. He noted that he did not reach out to the U.S. Space Force because that branch of the military was founded while the memorial was being built.
Weinstein said even if the Department of Defense were to retrospectively issue written permission for the use of the challenge coins on the memorial, it would not end that part of the complaint.
“That’s a case where we would aim to sue the Department of Defense,” Weinstein said. “If they were to get permission to do this, that would open the door for anybody to do it.
“Can you imagine if this was an Islamic Memorial or a Satanic Memorial? There would be blood in the streets.”
Weinstein said the MRFF expects the Pentagon to “do the right thing” and tell the Carlson family they cannot use the military service marks on the memorial.
“You can’t just take the logos like that because it implies endorsement,” he said. “They would lose in federal court.”
With the threat of litigation looming, Michael Carlson said the entire state of affairs has been dejecting. “It’s making me feel really down about myself,” he said. “It just shows that I tried to do something nice for people and some people can’t accept it.”
Carlson, the son of a Vietnam War veteran and grandson of a WWII veteran, said the stress of the situation has taken its toll on him.
“I just took the SAT, and this certainly didn’t help with that,” he said. “Anything stressful like this is going to have an affect on your personal life and what you’re doing.”
Carlson said he acquired the quote for the inscription from a web search. Its author is unknown, he said.
Kathy Carlson said the only positive has been the “incredible outpouring” of support from the community and from those across the country who have learned about the controversy.
“We used to look at the memorial and be really happy and feel really good about what we did for the community,” she said. “And now when we talk about the memorial, it’s just gut-wrenching.”
Kathy Carlson said no one in the family has been contacted by the MRFF, or has reached out to the organization. She said her only message to Weinstein is, “I’m sorry you feel the way you do. Know that I am praying for you.”