Chafee: Board Inspired By Woonsocket Memorial Won't Dispel Legal Challenge

Gov. Lincoln Chafee says a law aimed at shielding monuments from establishment clause challenges won't do that, but one of its authors says it will make Woonsocket's fight against the Freedom From Religion Foundation Rhode Island's fight, too.

Now, "They've got to go after the state. They can't pick on Woonsocket," said Rep. Spencer Dickinson (District 35, South Kingstown), who helped write the law, mirrored in House and Senate bills (2012-H 8143A, 2012-S 3035aa).

The legislation, which creates a "Category One Memorial Designation Commission" to label monuments for historical significance, became law yesterday without Gov. Lincoln Chafee's signature.

The law's sponsors, Rep. James N. McLaughlin (D-Dist. 57, Cumberland, Central Falls) and Sen. Roger A. Picard (D-Dist. 20, Woonsocket, Cumberland) say the commission's label will shield the Place Jolicoeur Monument from the demands of the Freedom From Religion Foundation, but Chafee disagreed.

The Category One Memorial Designation Commission has the authority to label monuments as "Category 1 Memorial Items.” In order to earn that designation, the item must be a structure, sculpture, inscription or icon that:

• Has attained a secular traditional, cultural or community recognition;
• Is located on property owned by either the state, a city or town, or any instrumentality thereof
• Was in existence prior to Jan. 1, 2012

An item with recognizable identification with a known or established religion does not exclude the item from being designated as a Category 1 Memorial item, as long as the criteria have been met.

"Without this, up until now we had nothing to protect us," said McLaughlin, who co-wrote the bill with Dickinson. Picard and Dickinson credited McLaughlin with pushing to get the bill through the General Assembly. McLaughlin said the law would provide local monuments legal protection against attacks on religious grounds.

But in his statement on the bill, Chafee was not as certain that the Commission's power could shield monuments from legal attack under the First Ammendment's establishment clause, "Congress shall make no law respecting an establishment of religion."

In the Supreme Court ruling Lemon v. Kurtsman, "To be constitutional, a statute must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion."

According to a UPI report about the Supreme Court's recent refusal to hear two establishment clause cases, the test has since been narrowed to "does a challenged government action have the actual purpose of endorsing religion, or does it have that effect when viewed by a "reasonable observer?"

The Freedom From Religion Foundation invoked the clause when it demanded that the cross atop the Place Jolicoeur Memorial be removed in April. More than a thousand people rallied to support preserving the monument on the basis of its secular value.

"Ultimately, this bill gives the community a voice in determining which monuments it believes deserve special recognition, but passing this does not change the fact-finding mission in which the courts must engage to resolve these questions," Chafee wrote. 

Dickinson said the law pre-empts claims that relgious symbols on monuments violate the establishment clause. "We're stating that the existence of an object does not equal the passing of a law," said Dickinson.

Also, he said, a challenge to a monument labeled a Category One Memorial, "...creates a challenge to the state as well."