It’s no secret that some companies put “hidden” biblical messages on the products they sell.  Alaska Airlines places a Bible scripture card under every meal tray it serves to passengers. 

Forever 21 reportedly puts “John 3:16” on its bags.  Perhaps better known is the tradition of In-N-Out Burgers, who put several bible verses on their wrappers.  The authoritative snopes.com states that—

· Soda cups bear the notation John 3:16

· Milkshake cups list Proverbs 3:5

· Hamburger/cheeseburger wrappers show Revelation 3:20

· The “Double-Double” wrappers list Nahum 1:17

More recently, news outlets reported that a Michigan-based defense contractor has been including similar biblical “codes” on high-powered rifle sights that it sells to the Defense Department.  According to ABC News, Trijicon has a $660 million multi-year contract to provide Advanced Combat Optical Guides (ACOG) to the Marine Corps. and U.S. Army.  ABC News reports—

One of the citations on the gun sights, 2COR4:6, is an apparent reference to Second Corinthians 4:6 of the New Testament, which reads: "For God, who commanded the light to shine out of darkness, hath shined in our hearts, to give the light of the knowledge of the glory of God in the face of Jesus Christ."   Other references include citations from the books of Revelation, Matthew and John dealing with Jesus as "the light of the world." John 8:12, referred to on the gun sights as JN8:12, reads, "Whoever follows me will never walk in darkness, but will have the light of life."

The company spokesman noted that the biblical citations “have always been there” and said there was nothing wrong or illegal about them.  Others aren’t so sure.  The story reports Mikey Weinstein of the Military Religious Freedom Foundation as saying, “It's wrong, it violates the Constitution, it violates a number of federal laws."  In addition, Weinstein noted, “It allows the Mujahedeen, the Taliban, al Qaeda and the insurrectionists and jihadists to claim they're being shot by Jesus rifles."  He added, “This is probably the best example of violation of the separation of church and state in this country."

Putting aside Mr. Weinstein’s hyperbole, it is not clear if there is anything that the DOD can do about the situation, at least retroactively.  Once the ACOGs have been inspected and accepted, only a “latent” defect can allow the sights to be returned.  A “latent” defect is a “defect that existed at the time of acceptance but would not have been discovered by a reasonable inspection.”  In order to show a latent defect, the Government must prove that the defect existed at the time of final acceptance, it was hidden from knowledge as well as sight, and could not be discovered by the exercise of reasonable care.  If the defect was discoverable by a reasonable inspection, it is “patent” and not “latent” and thus the Government is bound by its inspection and acceptance of the goods.

Given that the biblical “codes” were in plain sight and had “always been there” we think the Government would have difficulty proving they were a latent defect.  On the other hand, there is nothing that would prevent the DOD from revising the ACOG specifications to eliminate unnecessary markings.  Were the Government to take that action, then Trijicon would have to change its tooling and machining operations to eliminate the step of creating the markings—and it would be able to pass on any increased costs that resulted from the change back to the Government pursuant to the Changes clause in its contract.

There is also the question as to whether these sights are uniquely designed for military use, or are simply commercially produced sights that could be used for star-gazing, bird-watching, or what-have-you.  If the DOD acquired these sights under a FAR Part 12 “commercial item acquisition,” then it may have little or no recourse whatsoever.