Court Rules War Memorial Cross Unconstitutional
SAN DIEGO - A war memorial cross in a public park is unconstitutional because it conveys a message of government endorsement of religion, a federal appeals court ruled Tuesday in a two decade old case.
A three-judge panel of the 9th U.S. Circuit Court of Appeals issued the unanimous decision in the dispute over the 29-foot (9-meter) cross, which was dedicated in 1954 in honor of Korean War veterans.
The court said modifications could be made to make it constitutional, but it didn't specify what those changes would be.
"In no way is this decision meant to undermine the importance of honoring our veterans," the three judges said in their ruling. "Indeed, there are countless ways that we can and should honor them, but without the imprimatur of state-endorsed religion."
Federal courts are reviewing several cases of crosses on public lands being challenged as unconstitutional, including a cross erected on a remote Mojave Desert outcropping to honor American war dead. Tuesday's ruling could influence future cases involving the separation of church and state.
U.S. Justice Department spokesman Wyn Hornbuckle said the federal government, which is defending the San Diego cross, is studying the ruling and had no comment.
Gina Coburn, spokeswoman for the San Diego's city attorney's office, which was once a defendant in the case, said the cross will have to be removed from Mount Soledad unless a full panel of 9th Circuit judges reverses Tuesday's decision or the Supreme Court agrees to rule on it.
The American Center for Law and Justice, an evangelical Christian legal group which has fought to preserve the cross, called it "a judicial slap in the face" to military veterans and said they planned to ask the Supreme Court to intervene.
The legal fight over the Mount Soledad cross began in 1989 when atheist Philip Paulson sued the city of San Diego. Paulson, a Vietnam War veteran, contended that the cross excludes veterans who aren't Christian. A Jewish war veterans group has also been a plaintiff in the case along with the American Civil Liberties Union.
State and federal judges have ordered the cross removed, saying it represents an unconstitutional endorsement of one religion. But in 2006, the U.S. Supreme Court blocked an order that the city take it down that summer, giving lower courts time to hear appeals.
City officials have argued that the cross is part of a secular war memorial, and the cross has been embraced by San Diego residents who in 2005 overwhelmingly approved a measure to preserve it by donating it to the federal government.
The land under the cross was eventually transferred to the federal government but the courts have said that did not protect it from the constitutional dispute.
Joe Infranco, senior counsel of The Alliance Defense Fund, an Arizona-based Christian legal group, said the memory of troops should not be dishonored because the ACLU and a few others are offended by the presence of the cross.
"It's tragic that 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," he said.
David Blair-Loy of the ACLU in San Diego County said the court acted correctly.
"We honor those who have served, but the Constitution does not allow the government to exclude non-Christians by endorsing a clearly religious symbol," he said.
The Rev. John Fredericksen of Orlando, Fla., was among a steady stream of people who visited the white cross Tuesday atop Mount Soledad, which affords spectacular views of the Pacific Ocean and the surrounding upscale suburb of La Jolla.
"For those who are offended, they can move or look somewhere else," the 56-year-old Christian pastor said. "Christians are not asking every mosque or synagogue to be torn down. Why tear down a symbol of Christianity? Let them find or make their own memorial."
Michael Aguirre, a former San Diego city attorney who has followed the case closely, said cross supporters will have to counter the court's analysis that the cross was used historically to promote Christianity.
The ruling recounts that the cross was dedicated on Easter Sunday and used for religious gatherings for nearly three decades before it became a war memorial. It said La Jolla has a "well-documented history" of anti-Semitism from the 1920s to around 1970.
"This cross marks La Jolla as a Christian community, that's basically what (the judges are) saying," said Aguirre, who is now in private practice. "It was a cross for decades in a community with a history of anti-Semitism."
AP A three-judge panel of the 9th U.S. Circuit Court of Appeals issued the unanimous decision in the dispute over the 29-foot (9-meter) cross, which was dedicated in 1954 in honor of Korean War veterans.
The court said modifications could be made to make it constitutional, but it didn't specify what those changes would be.
"In no way is this decision meant to undermine the importance of honoring our veterans," the three judges said in their ruling. "Indeed, there are countless ways that we can and should honor them, but without the imprimatur of state-endorsed religion."
Federal courts are reviewing several cases of crosses on public lands being challenged as unconstitutional, including a cross erected on a remote Mojave Desert outcropping to honor American war dead. Tuesday's ruling could influence future cases involving the separation of church and state.
U.S. Justice Department spokesman Wyn Hornbuckle said the federal government, which is defending the San Diego cross, is studying the ruling and had no comment.
Gina Coburn, spokeswoman for the San Diego's city attorney's office, which was once a defendant in the case, said the cross will have to be removed from Mount Soledad unless a full panel of 9th Circuit judges reverses Tuesday's decision or the Supreme Court agrees to rule on it.
The American Center for Law and Justice, an evangelical Christian legal group which has fought to preserve the cross, called it "a judicial slap in the face" to military veterans and said they planned to ask the Supreme Court to intervene.
The legal fight over the Mount Soledad cross began in 1989 when atheist Philip Paulson sued the city of San Diego. Paulson, a Vietnam War veteran, contended that the cross excludes veterans who aren't Christian. A Jewish war veterans group has also been a plaintiff in the case along with the American Civil Liberties Union.
State and federal judges have ordered the cross removed, saying it represents an unconstitutional endorsement of one religion. But in 2006, the U.S. Supreme Court blocked an order that the city take it down that summer, giving lower courts time to hear appeals.
City officials have argued that the cross is part of a secular war memorial, and the cross has been embraced by San Diego residents who in 2005 overwhelmingly approved a measure to preserve it by donating it to the federal government.
The land under the cross was eventually transferred to the federal government but the courts have said that did not protect it from the constitutional dispute.
Joe Infranco, senior counsel of The Alliance Defense Fund, an Arizona-based Christian legal group, said the memory of troops should not be dishonored because the ACLU and a few others are offended by the presence of the cross.
"It's tragic that 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," he said.
David Blair-Loy of the ACLU in San Diego County said the court acted correctly.
"We honor those who have served, but the Constitution does not allow the government to exclude non-Christians by endorsing a clearly religious symbol," he said.
The Rev. John Fredericksen of Orlando, Fla., was among a steady stream of people who visited the white cross Tuesday atop Mount Soledad, which affords spectacular views of the Pacific Ocean and the surrounding upscale suburb of La Jolla.
"For those who are offended, they can move or look somewhere else," the 56-year-old Christian pastor said. "Christians are not asking every mosque or synagogue to be torn down. Why tear down a symbol of Christianity? Let them find or make their own memorial."
Michael Aguirre, a former San Diego city attorney who has followed the case closely, said cross supporters will have to counter the court's analysis that the cross was used historically to promote Christianity.
The ruling recounts that the cross was dedicated on Easter Sunday and used for religious gatherings for nearly three decades before it became a war memorial. It said La Jolla has a "well-documented history" of anti-Semitism from the 1920s to around 1970.
"This cross marks La Jolla as a Christian community, that's basically what (the judges are) saying," said Aguirre, who is now in private practice. "It was a cross for decades in a community with a history of anti-Semitism."
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"Congress shall make NO LAW respecting an establishment of religion, or PROHIBITING the free exercise thereof;..."
No law has been established, but the free expression sure has been violated!
Mortarman429, did you happen to read the article with the interview of Justice Scalia, and his take on the 14th amendement. Which will have impact on the repeal of the prop.8 ban....what your thoughts, if you don't mind me asking.
--------------------
Empire, you still out there? If you are, I will answer.
"I, ________, do solemnly swear (or affirm) that I will administer justice
without respect to persons, and do equal right to the poor and to the
rich, and that I will faithfully and impartially discharge and perform
all the duties incumbent upon me as ________ under the Constitution and
laws of the United States. So help me God."
The last part is kinda ironic eh?
Heres the question. Answer it honestly from your heart and forget about politics and PC.
Do you really think they should remove the thousands of crosses at Arlington Cemetary and replace them with some other headstone at the graves of our falling heros for any reason?
A simple yes or no will do. No
But to many secularists and atheists, this cross is seen as "forcing beliefs, down their throat" as they have said earlier.....no more than seeing a mosque is forcing Islam down our throats either.
by ici2i January 6, 2011 11:15 AM EST
I sincerely doubt that. The slip that you think it is a fiction comes across well as to your spelling of Crucifixion. Whether this was intentional or not, well . . . you have to wonder if all the people who in the name of Colonialism, i.e., Spain, France, Britian, and the Netherlands, did so with the cross as their symbol. Was that intentional? Prior to this, the cross was a strong emblem for the Crusaders from these same countries.
So this fiction, as you believe, has propelled advancement for two millenia.
But it really isn't. It is an optical illusion playing tricks on your eyes.
The constitution is in black & white. But it's not. If it's meaning was clear to all, there would be no arguments about it's intent and meaning. It would specifically state what it meant and leave nothing to interpretation.
The simple fact that there are differences in the interpretations, from scholars far wiser and intelligent than most of us could ever hope to be, tells me the Constitution has colors of Grey in it.
The interpretations changes as often as the make up of the SCOTUS changes. Just my opinion.
Again, where there may be honest issues of disagreement, the Founders also stated that we should look at the meaning most closely in line with the rest of the document's meaning.
And if we still had a problem, then amend the thing.
The SCOTUS doesnt get to decide on meaning...just to state what the meaning was based on those who wrote that particular law. Any other actions makes them a rogue court and an enemy of the Constitution. And rulings of that sort are unConstitutional!
I have never understood how something was Constitutional in 1953 and in the year 2010 it is deemed to be Unconstitutional. The only thing that changed were the people interpreting the issue. Makes no sense.
The differences between the two walls are suggested by Jefferson's record as a public official in both Virginia and the nation, which shows that he initiated practices and implemented policies inconsistent with Justice Black's and the modern Supreme Court's "high and impregnable" wall of separation. Even among the metaphor's proponents, this has generated much debate concerning the proper dimensions of the wall. Whereas Jefferson's wall expressly separated the institutions of church and state, the Court's wall, more expansively, separates religion and all civil government.
Jefferson's wall separated church and the federal government only. By incorporating the First Amendment non-establishment provision into the due process clause of the Fourteenth Amendment, Black's wall separates religion and civil government at all levels--federal, state, and local.
By extending its prohibitions to state and local jurisdictions, Black turned the First Amendment, as ratified in 1791, on its head. A barrier originally designed, as a matter of federalism, to separate the national and state governments, and thereby to preserve state jurisdiction in matters pertaining to religion, was transformed into an instrument of the federal judiciary to invalidate policies and programs of state and local authorities. As the normative constitutional rule applicable to all relationships between religion and the civil state, the wall that Black built has become the defining structure of a putatively secular polity.
And your statement is an expression of your idiocy.
I base my life on liberty. The same thing they did.
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Man, you have built some glourious image of yourself and your gods in your mind, haven't you.