Wednesday, January 5, 2011
Ninth Circuit Panel Rejects Bid to Retain Cross in San Diego
From Staff and Wire Service Reports
The federal government’s acquisition of land containing a 29-foot Latin cross—atop a 14-foot base—and its maintenance as part of a war memorial violates the First Amendment because it conveys a message of government endorsement of religion, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In an en banc opinion, Judges Harry Pregerson, M. Margaret McKeown, and Richard A. Paez 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. Yesterday’s ruling, on a matter that has been in litigation for two decades, 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 cross, was studying yesterday’s ruling and had no comment.
The Alliance Defense Fund, an Arizona-based Christian legal group, called Tuesday’s decision an insult to troops.
“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,” said Joe Infranco, the group’s senior counsel.
The ruling is the latest in a series of court decisions that have deemed the Mount Soledad cross unconstitutional because it stands on public property.
The presence of crosses on the site, part of a public park on an 822-foot hill in La Jolla, has a long history, dating back to 1913, The Mt. Soledad Memorial Association erected the present cross, with the city’s permission, and dedicated it as a veteran’s memorial in 1954.
A previous cross on the site was destroyed in a storm in 1952.
The legal fight began in 1989 when atheist Philip Paulson sued the city of San Diego over the cross. Paulson, a Vietnam War veteran, contended that the cross excludes veterans who aren’t Christian. The Jewish War Veterans of the United States has also been a plaintiff in the case along with the ACLU, although the court pointed out in a footnote that a local Jewish veterans’ group supported the cross.
State and federal judges have ordered the cross removed, finding it to be both a state and federal constitutional violation as an unconstitutional endorsement of one religion. But in 2006, U.S. Supreme Court Justice Anthony Kennedy blocked an order that the city take it down that summer or pay a fine of $5,000 per day.
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. A judge declared the measure unconstitutional.
Congress passed legislation in 2006 authorizing the federal government to acquire the land by eminent domain. U.S. District Judge Larry Burns of the Southern District of California upheld the law two years ago, but the appellate panel disagreed.
The judges agreed with the government that the law had a secular purpose, but said the acquisition and maintenance by a federal entity of “an iconic Christian symbol” has the effect of advancing a particular religion and thus violates the constitutional separation of church and state.
The panel rejected Burns’ conclusion that the Latin cross has a “broadly understood ancillary meaning as a symbol of military service, sacrifice, and death.” The Jewish War Veterans, the judges said, provided extensive evidence, in the form of expert witness declarations, “that the cross is not commonly used as a symbol to commemorate veterans and fallen soldiers in the United States” and that “that the vast majority of war memorials in the United States to not include crosses.”
David Blair-Loy of the ACLU of San Diego & Imperial Counties said there are other ways to honor troops.
“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 court is correct to find a violation of the First Amendment.”
Rev. John Fredericksen of Orlando, Fla., was among a steady stream of people who visited the white cross Tuesday atop Mt. Soledad, which affords spectacular views of the Pacific Ocean and surrounding 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.”
The case is Trunk v. City of San Diego, 08-56415.
Copyright 2011, Metropolitan News Company