Witness Testimony of Mr. Kelly Shackelford, President, The Liberty Institute
I am Kelly Shackelford, the President and Chief Executive Officer of Liberty Institute. Liberty Institute is the largest non-profit law firm in the nation dedicated solely to defending religious liberty in America. It was our privilege and honor to represent Pastor Scott Rainey, VFW District 4, The American Legion Post 586, the National Memorial Ladies, and Lisa Ward, James Haycraft, and Geraldine Lakey, family members of recently deceased veterans, in their lawsuit against the United States Department of Veterans Affairs, Hon. Eric Shinseki, Secretary of the VA, and Arleen Ocasio, Director of the Houston National Cemetery, seeking to prohibit religious censorship and discrimination at the Houston National Cemetery.
The claims in this lawsuit were supported by the sworn testimony of 25 veterans and their supporters who witnessed firsthand religious hostility occurring at the Houston National Cemetery. This lawsuit was resolved in October 2011, with the entry of a 20 page Consent Decree that includes 50 specific court ordered requirements restoring the religious liberty rights of our clients, other veterans across the country and those who seek to serve and honor them.
What happened to our veterans is outrageous. They deserve better than this. Our veterans and active service military have paid and are paying the ultimate price for our freedoms. It is unconscionable to strip their religious freedom from them and their families at the time of their death.
Censorship of Prayer at Houston National Cemetery
This lawsuit began in May of 2011 when the Director of the Houston National Cemetery attempted to edit and censor Pastor Scott Rainey’s prayer at a Memorial Day ceremony held at the cemetery by a private, nonprofit organization. Pastor Rainey prayed at the ceremony the prior two years without any governmental interference. Unlike previous years, the Director of the Houston National Cemetery (overseen by the VA), Arleen Ocasio, told Pastor Rainey that his prayer needed to be submitted to her for prior approval and that its contents needed to be “non-denominational.”
Pursuant to Director’s Ocasio’s instructions, Pastor Rainey submitted to Director Ocasio a draft of his prayer in advance of the Memorial Day ceremony. In response, Director Ocasio told Pastor Rainey, “I must ask you to edit it.” Director Ocasio further stated the prayer cannot be “specific to one belief” and “on Memorial Day we will be commemorating veterans from all cultures and religious beliefs.” Therefore, “[t]he tone of all messages must be inclusive of all beliefs, need to be general, and its fundamental purpose should be … non-denominational in nature.” After receiving Director Ocasio’s email, Pastor Rainey contacted her by phone. Director Ocasio instructed Pastor Rainey that if he did not remove the references in his prayer that are specific to one religion (including praying in Jesus’ name) that he would not be allowed to deliver a prayer at the Memorial Day ceremony.
On May 24, 2011, a demand letter was sent to VA Secretary Eric Shinseki and Director Ocasio, informing them of the relevant law and requesting that they inform Liberty Institute in writing by 5:00 p.m. on Wednesday, May 25, 2011 that Pastor Rainey may provide a prayer at the Memorial Day ceremony without removing references to his religion. The following day, May 25, 2011, Jack H. Thompson, VA Deputy General Counsel, responded to the demand letter via email. He stated that “[c]ertainly, the decision to keep pastoral remarks non-denominational—a viewpoint neural policy—is appropriate in this instance.” Mr. Thompson further stated that “the ceremony will commemorate veterans of all cultures and beliefs, and the tone of remarks must therefore be inclusive.” He went on to state that Pastor Rainey must notify Director Ocasio by 3 p.m. the following day if “he agrees to modify the message he wishes to deliver in compliance with [Director Ocasio’s] directive to him dated May 19, 2011....”
On May 26, 2011, Pastor Scott Rainey filed a complaint and a motion for a temporary restraining order in the U.S. District Court for the Southern District of Texas, Houston Division, seeking that Defendants Director Ocasio and the VA be enjoined from censoring the contents of his prayer and religious expression at the May 30, 2011 Memorial Day ceremony, hosted by the National Cemetery Council for Greater Houston.
On May 26, 2011, U.S. District Judge Lynn Hughes enjoined Defendants VA and Director Ocasio and all those acting in concert with them from dictating the content of speeches, including prayer, at the May 30, 2011 Memorial Day ceremony.
Restrictions Placed Upon Veterans Honor Guards at Houston National Cemetery
While we were presenting the arguments to the Court about Pastor Rainey, we learned of several other instances of religious hostility occurring at the Houston National Cemetery, including religious censorship directed at veterans honor guards.
For at least 30 years at Houston National Cemetery, families of deceased veterans worked with private funeral homes to arrange military honors. If the family requested that the VFW District 4 burial team, or any other volunteer burial team such as The American Legion Post 586 burial team, perform military honors, the funeral home contacted VFW District 4 or The American Legion Post 586 directly. If the funeral home contacted the VFW District 4 Honor Guard, they would perform the VFW Burial Ritual, a ritual that dates back to 1914. If the funeral home contacted the American Legion Post 586, they would perform the American Legion Burial Ritual. Both rituals include religious speech and prayer and references to God.
It was only after Director Ocasio’s arrival at the Houston National Cemetery that the government inserted itself into this process and began discriminating against religious speech and expression. Prior to Director Ocasio’s arrival at the Cemetery, the VFW District 4 and American Legion Post 586 honor guards included religious speech and prayer in their burial rituals without interference from any representatives of the Cemetery. Cemetery officials never required that the families of the deceased veteran submit requests to them, either written or oral, before the honor guards performed their burial rituals. Funeral arrangements were made through the private funeral homes, not by Cemetery officials. These veterans groups never heard a complaint about performing their burial ritual. To the contrary, families praised these groups’ honor guards.
During several meetings in 2011, Director Ocasio told the leadership of VFW District 4 that its honor guard could no longer do the entire VFW Burial Ritual. Instead, they could only do what she described as the “four core elements,” the folding of the flag, the presentation of the flag, the rifle salute, and the playing of Taps. At these meetings, Director Ocasio stated that the VFW District 4 Honor Guard members could not provide texts of prayer to the family for consideration. She also stated that if family members wanted a certain prayer read, they would have to submit the prayer to the cemetery in writing and cemetery officials would then give the prayer to the VFW District 4 Honor Guard to read.
Also, in 2011, a cemetery representative told the VFW District 4 Honor Guard that they were not allowed to do the entire VFW Burial Ritual because the word “God” is forbidden. The cemetery representative did state that they could say the Lord’s Prayer and the 23rd Psalm since the word “God” is not included in those texts. When questioned regarding the source of the authority for these pronouncements, the cemetery representative responded “by my supervisor’s orders.”
Further, in 2011, a cemetery employee instructed American Heritage Funeral Home, which sits next to the Houston National Cemetery and specializes in veterans’ funerals, that the VFW District 4 Honor Guard team is forbidden from including prayer or religious messages in its ritual, and must only do the “four core elements,” unless the family pre-submits the prayer or religious message that it would like in writing prior to the funeral. Incredibly, the cemetery employee also admittedly told the private funeral home that it was not allowed to inform families that they could have the VFW Honor Guard team include prayer or a religious message if they pre-submitted it in writing since that would be trying to influence the families.
For approximately two and a half years, VFW District 4 Honor Guard Junior Vice Commander Nobleton Jones recited to family members of the deceased veteran as he handed them the discharged shell casings from the gun salute: “On behalf of the United States of America, a grateful nation, and the Veterans of Foreign Wars, I present you with these shell casings from the shots that were fired to honor our departed comrade. We thank him for his honorable service to our country. We thank you and your family for your support. We ask that God grant you and your family grace, mercy, and peace.”
At a meeting in 2011, Mr. Jones asked Director Ocasio if he was permitted to make this recitation. Director Ocasio stated “no.” Mr. Jones then asked if he was allowed to hand the shell casings to the family. Director Ocasio again said “no.” Director Ocasio further stated that Mr. Jones was prohibited from having any direct contact with the family. Moreover, after a burial ceremony in 2011, a cemetery employee, who was monitoring the funeral service, instructed Mr. Jones that he was no longer allowed to recite his message as he hands the discharged shells to the family, presumably because the message includes the word “God.”
In 2011, Director Ocasio implemented a policy entitled “Houston National Cemetery Honor Guard Guidelines” (the “Houston Guidelines”). The Houston Guidelines required that the volunteer honor guards delete all religious elements from their rituals, unless the family specifically requests otherwise. The policy stated that “funeral military honors should consist only of the core elements: the folding of the United States Flag; presentation of the flag to the veteran’s family; playing of traditional Taps; and a rifle salute. Additions to these core elements can only be made at the request of the deceased’s survivor(s).” ¶ 4.a. The Houston Guidelines also stated that if the family of the deceased veteran has a member of the clergy recite a prayer or read from scripture that the volunteer honor guard may not also read scripture or recite a prayer. ¶ 7. The Houston Guidelines further restricted the speech of the honor guards by stating that they are forbidden from providing the texts of optional recitations for the committal service to the deceased’s survivors for consideration. ¶ 8.b.
According to Director Ocasio, the Houston Guidelines were based upon national VA policy. On November 1, 2007, Under Secretary for Memorial Affairs William F. Tuerk issued a memorandum with the subject “Policy on Recitations on the Meaning of Folds of an Honor Guard Funeral Flags” (the “2007 National Policy”). The 2007 National Policy provided that “NCA employees, including VA-sponsored Volunteer Honor Guards, may read such recitations at committal services, but only if the recitation to be read is presented by the deceased’s survivor(s). NCA employees, including VA-sponsored Volunteer Honor Guards, shall not provide texts of any such recitations to the deceased’s survivors for consideration.”
Restrictions Placed Upon The National Memorial Ladies at Houston National Cemetery
The National Memorial Ladies (“NML”) is a private, nonprofit organization that was founded in 2008. The NML’s mission is to ensure that no soldier is ever buried alone. The NML began attending veterans’ funerals at Houston National Cemetery in September 2008. To that end, the group attends most veterans’ funerals at Houston National Cemetery, approximately 60 a week, to honor veterans and console their families. Since 2008, NML volunteers have attended thousands of veterans’ funerals at the Houston National Cemetery.
If the family members of the deceased veteran attend the funeral, the NML will hand them a condolence card with both a printed and handwritten message. When handing the family members the card, the volunteers will often orally thank them for their sacrifice. Previously, NML volunteers would write “God Bless You and Your Family” in their condolence cards and would sometimes say “God Bless You and Your Family” or “we’re praying for you” to the families of the deceased veterans.
NML volunteers have always been sensitive to the religious backgrounds of the families. NML volunteers can usually discern the religious background of the family by observing what type of clergy member is present. If the cemetery employee attending the funeral informs a NML volunteer that the veteran or the veterans’ family is atheist, the volunteer will not mention “God” or say any other religious message, and will not hand the family a condolence card with “God” or any other religious message. No one has ever complained about a NML volunteer; to the contrary, many individuals have praised the NML for their volunteer efforts.
In September 2010, Director Ocasio approached NML’s President, Cheryl Whitfield, and asked her what the NML volunteers write in the condolence cards. Ms. Whitfield told her that the ladies write something to the effect of “On behalf of the people of the United States of America, we are grateful to [name of deceased veteran] for his [or her] selfless service he [or she] gave our country—our nation is grateful. God bless you and your family, [name of NML volunteer].” Director Ocasio then told Ms. Whitfield that the word “God” is forbidden. Director Ocasio stated that “God Bless You” could no longer be written in the condolence cards or spoken to the families, and that the NML volunteers could no longer speak or write any religious message. Director Ocasio instructed Ms. Whitfield that all speech, both oral and written, has to be “generic” so that the NML volunteers do not offend anyone.
Later that month, Director Ocasio met with Ms. Whitfield and five other NML volunteers in the cemetery lunchroom/conference room. During the meeting, Director Ocasio stated that NML volunteers could no longer speak or write religious words or messages such as “God,” “Jesus,” or “God Bless You.” Director Ocasio stated that NML volunteers could instead speak or write “peace be with you” or “our thoughts are with you.” Director Ocasio stated that all speech needs to be “generic.” Director Ocasio explained that NML volunteers needed to remove religious references from their speech because they are on government property. Director Ocasio stated that the cemetery was trying to achieve “shrine status” and that in order to do this, cemetery employees and volunteers need to work on “customer service.” Director Ocasio said that “we can’t take a chance of offending anyone” so we don’t hurt “customer service.” She further stated that removing all religion would make the cemetery “neutral” towards religion.
Closure of Houston National Cemetery’s Chapel and Removal of its Religious Symbols
The Houston National Cemetery chapel previously displayed religious symbols, such as a large Bible, a cross and a Star of David. Before Director Ocasio’s arrival at Houston National Cemetery, the cemetery chapel was open during Cemetery operating hours, it was not used for storage, its carillon was tolling three times per day and playing hymns at various times, and it was used for funeral services. In addition to being used for funeral services, the cemetery chapel served as a place for individuals to pray, reflect, or mediate on the sacrifices of our veterans. Special events, such as a reception for the Gold Star Mothers, an organization of mothers who have lost a son or daughter in the service of our country, were also held at the cemetery chapel.
Sometime around the Fall of 2010, the cemetery chapel was closed. The doors remained locked during Houston National Cemetery operating hours, it was no longer used for funeral services, and the carillon was no longer tolling. This occurred after Director Ocasio’s arrival at the Cemetery, approximately February 2010, and before Cemetery construction commenced, approximately January 2011. Director Ocasio only unlocked the chapel doors when Houston National Cemetery meetings or training sessions were held in the building. Furthermore, Director Ocasio did not refer to the building as a “chapel” but a “meeting facility.” The back pews were filled with boxes, making the building appear more like a storage facility than the chapel for which it was originally intended.
In January 2011, Director Ocasio confirmed to the leadership of VFW Post 9182 that the chapel was closed and stated that she had closed it to make the Houston National Cemetery more “comfortable” for people of all faiths.
Sometime after June 27, 2011, when the First Amended Complaint was filed in our lawsuit, the chapel was unlocked. However, the Bible, the Cross, and the Star of David were still kept in storage until after the entry of the Consent Decree,
Interference with the wishes of the families of deceased veterans at Houston National Cemetery
At least on three occasions, cemetery officials interfered with families of deceased veterans in their making arrangements for burial service. James Haycraft, Geri Lakey and Lisa Ward are representatives of families of deceased veterans, whom cemetery officials interfered with and sought to, or in fact, precluded the families’ wishes in honoring their deceased loved one. As result of the cemetery’s actions, Mr. Haycraft’s brother did not receive the burial service he desired, being prohibited from having the VFW Honor Guard perform the entire VFW Burial Ritual. In the case of Ms. Lakey, cemetery officials attempted to stop her husband from receiving the entire VFW Burial Ritual. But for the actions of her husband’s VFW Post Commander (a former judge), his final wishes would have been thwarted. Finally, with regard to Ms. Ward, in light of the cemetery’s practices and policies, Ms. Ward had to have her husband’s burial service at a private funeral home rather than the Houston National Cemetery so that the honor guard could perform the entire VFW Burial Ritual, as she desired. Nevertheless, because of the cemetery’s restrictions, her desire to have the service at the cemetery was denied.
Entry of Consent Decree; Restoration of Religious Liberty at National Cemeteries
During the course of the litigation, the VA revealed the national policies it had in place authorizing Director Ocasio to engage in religious discrimination. After almost five months of litigation, on October 19, 2011, U.S. Federal District Judge Lynn Hughes entered a consent decree resolving this litigation. This landmark consent decree restores the religious liberty rights of our clients and ended the religious hostility occurring at the Houston National Cemetery. This Consent Decree not only impacts religious freedom at Houston National Cemetery, but has national implications since the VA agreed to change the national policies under which Director Ocasio acted.
In summary, the Court ordered the Government to:
1. Amend the VA’s national policy (National Cemetery Directive 3170) that restricted free speech during special ceremonies and events (e.g., Memorial Day, Veterans Day, etc.) at VA national cemeteries, eliminating the requirement that invocations and benedictions be “inclusive” and “nonderogatory.” (¶7)
2. Amend the VA’s national policy (November 1, 2007, National Cemetery memorandum issued by Under Secretary William F. Turek on the Meaning of Folds of an Honor Guard Funeral Flag) that restricted volunteer honor guards from performing their entire burial ritual. (¶18)
3. Rescind provisions of the Houston National Cemetery Honor Guard Guidelines (¶¶ 4.a., 7, 8.a., 8.b., and 8.c.) that restricted volunteer honor guards from performing their entire burial rituals. (¶¶ 10, 14, 17)
4. Not edit, control or exercise prior restraints on the content of private religious speech and expression by speakers during special ceremonies and events (e.g., Memorial Day, Veterans Day, etc.) or private committal services at Houston National Cemetery. (¶8)
5. Not ban, regulate or interfere with prayers, recitations or words of religious expression absent family objections at veterans’ committal services. (¶1)
6. Allow veterans’ families to hold committal services with any religious or secular content they desire. (¶2)
7. Not ban religious speech or words, such as “God” and “Jesus” in oral and written communications at committal services. (¶¶21, 22)
8. Not ban, regulate, or otherwise interfere with the giving of gifts, including gifts that contain a religious message or viewpoint at committal services. (¶23)
9. Keep the Houston National Cemetery chapel open and unlocked during normal operating hours, allow its use for private committal services, for prayer, or for reflection, and not use the public area of the chapel for storage. (¶¶40, 41, 45)
10. Return the Bible, the Cross and the Star of David for display in the chapel. (¶42)
11. Pay Plaintiffs’ attorneys fees and expenses. in the amount of $215,000.
As our lawsuit demonstrates, there is a real threat to religious liberty at national cemeteries. This legislation (H.R. 2720) will further protect the religious freedom of veterans and those who seek to serve and honor them. We support this effort and will do everything we can do to stand with our veterans. They deserve nothing less.