Mount Soledad memorial cross is ruled unconstitutional

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SAN DIEGO, Calif. — The Mount Soledad cross—as it currently sits atop the La Jolla, Calif. war memorial—is unconstitutional, a three-judge panel for the 9th Circuit U.S. Court of Appeals ruled Jan. 4.

"After examining the entirety of the Mount Soledad Memorial in context—having considered its history, its religious and non-religious uses, its sectarian and secular features, the history of war memorials and the dominance of the cross—we conclude that the memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause," Justice Margaret McKeown wrote in the 50-page decision, which was also signed by justices Harry Pregerson  and Richard A. Paez.

The justices went on to say that the cross, located on a prominent hill in the San Diego suburb of La Jolla, presents an "implicit message."

"By claiming to honor all service members with a symbol that is intrinsically connected to a particular religion, the government sends an implicit message 'to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.'"

At the same time, however, the panel declined to order that the cross be removed.

"This result does not mean that the memorial could not be modified to pass constitutional muster nor does it mean that no cross can be part of this veterans' memorial," the ruling said. "We take no position on those issues."

The suit is the latest in a 20-year saga over the cross.

After spending years unsuccessfully trying to defend its ownership of the memorial and the cross, the city of San Diego transferred ownership of the memorial to the U.S. Department of Defense.

The ACLU filed a subsequent suit, but U.S. District Judge Larry Burns ruled in 2008 that the cross was just one feature of the memorial and that the cross is also widely viewed as a secular tribute of sacrifice.

Joe Infranco, senior counsel for the Alliance Defense Fund, one of several religious freedom organizations representing cross supporters, said "the court chose a twisted and tired interpretation of the First Amendment over the common-sense idea that the families of fallen American troops should be allowed to honor these heroes as they choose. 

"No one is harmed, constitutionally or otherwise, by the presence of a cross on a war memorial," he added. "There is great harm to tearing these memorials down. "The memorial cross should stand in honor of the sacrifice made by American troops."

In addition, Franco suggested that the appeals court ruling was an affront to veterans.

"War heroes have earned the right to be remembered," he said. "The memory of those who sacrificed their lives for our freedom shouldn't be dishonored because the ACLU finds a small number of people who are merely offended."

Chuck LiMandri, West Coast director of the Thomas More Law Center and who lead defense of the memorial cross until it was transferred to the federal government said the ruling was a bit confusing.

"I don't see any middle ground," he said, adding that if the cross is unconstitutional, the only option besides removing the cross would be to alter it.

"As Justice Scalia said, we shouldn't have to profane a religious symbol in order to bring it into compliance with the law," the Rancho Santa Fe attorney said.

Doing such a thing, he said, would dilute the religious symbol until it "has no meaning at all."

LiMandri said the justice department is expected to appeal the case to the U.S. Supreme Court, where he believes the court will find that the monument and the cross have secular merits that do not represent an "overt preference" to a single religion.


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