The legal controversies surrounding Memorial Day

Memorial Day, Waterloo, NY.
Recent Memorial Day commemoration,Waterloo, NY. (Credit: Darlene Duprey, via Waterloo, New York, Birthplace of Memorial Day web site)

WASHINGTON, May 24, 2015 − Veterans who have died in our nation’s wars have, over time, been honored and remembered in many ways and in many places. But how many Americans know where flags, flowers and other decorations were first placed on graves to honor those brave soldiers who had fallen? And when should we honor these heroes today? There are many candidates for that honor.

A Civil War soldier’s gravesite in Warrenton, Va., was decorated on June 3, 1861. Some believe that this was our first Memorial Day.

Women in Savannah, Ga., decorated Confederate soldiers’ graves in 1862.

Gettysburg Cemetery Memorial.
Soldiers’ National Monument at the heart of Gettysburg National Cemetery, Gettysburg, PA. (Via Wikipedia)

A cemetery dedication in 1863 in Gettysburg, Pa., commemorated soldiers killed in that epic Civil War battle.

The villagers of Boalsburg, Pa., claim their own 1864 celebration of fallen veterans was the first in the nation.

A much-publicized observance occurred in Charleston, S.C., on May 1, 1865. Many Union prisoners were buried there in unmarked graves, and teachers, missionaries and black residents honored the fallen soldiers. The New York Tribune and other national newspapers covered the event.

Many claim that African-Americans invented Memorial Day in Charleston, offering that these recently freed slaves, through their flowers, songs and dance, announced to the world what the war had been about.

On April 25, 1866, women in Columbus, Miss., laid flowers on the graves of both the Union and Confederate soldiers who had died there.

Other southern cities, including Macon, Ga., Columbus, Ga., and Richmond, Va., all claim their 1866 ceremonies were the first.

A stone in a cemetery in Carbondale, Ill., indicates the first “Decoration Day” ceremony took place there on April 29, 1866.

A ceremony was held in Waterloo, N.Y., on May 5, 1866, to honor local veterans who had fought in the Civil War. Businesses closed and residents flew their flags at half-staff. Citzens of Waterloo say that other, earlier observances had been informal and not community-wide.

On May 6, 1868, three years after the Civil War was over, the head of an organization of Union veterans established “Decoration Day” as a time to decorate graves of the fallen with flowers. The Grand Army of the Republic ‘s Maj. Gen. John Logan declared that May 30 should be the date for this celebration, as it was believed that flowers would be in bloom all over the country.

Gen. Logan declared that the graves of the fallen should be decorated

“…with the choicest flowers of springtime and that we should guard their graves with sacred vigilance … Let pleasant paths invite the coming and going of reverent visitors and fond mourners. Let no neglect, no ravages of time, testify to the present or to the coming generations that we have forgotten as a people the cost of a free and undivided republic.”

On May 30, 1868, former Civil War officers and legislators gathered at the still-new Arlington National Cemetery to observe Memorial Day. Future President and former Civil War Maj. Gen. James Garfield was there and declared that the sacrifices of those who died “had made immortal their patriotism and their virtue.”

Memorial Day, 2008 at Arlington National Cemetery.
Memorial Day, 2008 at Arlington National Cemetery. (Via Wikipedia)

That Arlington National Cemetery event occurred, appropriately, across the Potomac River from Washington, D.C. It was marked by numerous speeches, including those given by Gen. Ulysses S. Grant and his wife. Children from the Soldiers’ and Sailors’ Orphan Home went through the cemetery and placed flowers on the graves of both Union and Confederate soldiers.

Similar events were held that year in 183 cemeteries in 27 southern states and in 336 additional cemeteries in 1869.

By 1870, over 300,000 Union soldiers were reinterred in 73 national cemeteries, all located near major battlefields with most in the South. The best-known of these cemetery locations were in Gettysburg, Pa., a national cemetery, and in Washington, D.C. (Arlington National Cemetery).

Northern states gradually adopted the annual commemoration idea as well, and by 1890, every northern state had a celebration of its own.

In 1966 Congress and President Lyndon Johnson “officially” settled the “first place” dispute and formally recognized the initial commemoration in Waterloo as the nation’s first remembrance ceremony. The question regarding the birthplace of ceremonies honoring veterans was thus established by the federal government.

The custom of honoring our nation’s fallen soldiers was originally called “Decoration Day.” In 1882, it was called “Memorial Day” for the first time. A federal law passed in 1967 finally declared “Memorial Day” to be this annual holiday’s official name.

In 1968, Congress passed the Uniform Monday Holiday Act, moving four holidays, including Memorial Day, from their traditional dates to a specified, calendar-determined Monday date in order to create four reliable three-day holiday weekends. Memorial Day was thus moved from its traditionally-observed date of May 30, to the last Monday in May. Congress duly noted that Memorial Day was a time to pray for peace, regardless of one’s religious beliefs.

In 2000, Congress passed Public Law 106-579, the National Moment of Remembrance Act, as it was “essential to remember and renew the legacy of Memorial Day” and to “pay tribute to individuals who have made the ultimate sacrifice in service to the United States and their families.” Under this law, Americans are required to pause for remembrance at 3 p.m. local time. However, not only is this law not observed, it is apparently unknown by most Americans.

The current law is 36 U.S. Code Section 116, Memorial Day, which summarized, states:

The last Monday in May is Memorial Day.

The president should issue an annual proclamation, which urges Americans to observe Memorial Day by praying, according to their individual religious faith, for permanent peace; and

  • designates a period of time on Memorial Day during which Americans may unite in prayer for a permanent peace; and
  • urges Americans to unite in prayer at that time; and
  • urges the media to join in observing Memorial Day and the period of prayer.

Many veterans groups and others have attempted to reverse the 1968 law by moving Memorial Day back to May 30. They offer that by making it a Monday to create a three-day weekend serves to undermine the meaning of the day, contributing to what they claim is the general public’s nonchalant observance of the holiday.

Beginning in 1987 and continuing until he died in 2012, former World War II veteran and Hawaii Sen. Daniel Inouye was one of those veterans involved in the “change-it-back” effort. He introduced a measure each year in the Senate to return the celebration of Memorial Day to May 30.

The late senator was appropriately concerned that the move of this holiday to create a three-day weekend served to marginalize its meaning. For many Americans today, Memorial Day marks the beginning of summer and not much more.

From this columnist: Thank you to all who serve. May the souls of those who have died in that effort know they are still being honored, and may they rest in peace.


Paul A. Samakow is an attorney licensed in Maryland and Virginia and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

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Paul Samakow
Attorney Paul Samakow brings his legal expertise and analysis from the trenches of the courtroom to Communities Digital News. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980 practicing in the DC metro area. Paul can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email @ [email protected], or through his website @ He is also available to speak to your group on numerous legal topics.