Appellate Court rules that San Diego memorial cross unconstitutional
A four-story-tall cross on a mountain peak park in an exclusive San Diego suburb in California is unconstitutional, a federal appeals court ruled recently.
The 9th Circuit Court of Appeals overturned a 2008 lower court decision by U.S. District Judge Larry Burns, who ruled that because the cross formed part of a war memorial, it could remain. The CA, in its Jan. 4 ruling deemed the cross unconstitutional because it’s on public land, posing a “government endorsement of religion,” the Los Angeles Times reported.
However, the three-judge panel did not immediately order its removal, but instead sent the case back to a trial judge to determine if the cross can be modified in a way that meets constitutional requirements, according to the Associated Baptist Press. The decision satisfies neither Jewish War Veterans and the American Civil Liberties Union, who want the cross removed; nor church conservatives who view the decision as “a judicial slap on the face” of veterans.
Circuit Judge Margaret McKeown wrote in a 56-page opinion, “[C]onsidering the entire context of the memorial, the memorial today remains a predominantly religious symbol. The history and absolute dominance of the cross are not mitigated by the belated efforts to add less significant secular elements to the memorial,” the ABP reported.
McKeown also wrote, “having considered its history, its religious and non-religious uses, its sectarian and secular features, the history of war memorials and 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 constitutional provision of separation of church and state],” the LA Times said.
Jay Sekulow, chief counsel for the American Center for Law and Justice wrote in his blog, “This is a flawed decision that not only strikes at the heart of honoring our military veterans, it reaches a faulty conclusion that this iconic memorial—part of the historic landscape of San Diego—is unconstitutional,” according to the ABP.
The 43-foot cross stands on an ocean side promontory on Mt. Soledad, an 800-foot hill in an affluent La Jolla neighborhood. It has been a point of contention for some 20 years since 1989 when atheist Phillip Paulson, a Vietnam veteran, filed a case to have it removed. In 2006 the land surrounding the cross was placed under the control of the U.S. Department of Defense, the LA Times said.
Then in 2007 Paulson died. Others continued the case and other lawsuits were added. Local and national politicians intervened, including President George W. Bush who moved to declare it a national Veterans monument. San Diego lawyers pointed out that the cross formed part of a Korean War Veterans memorial when it was dedicated in 1954. Previously, a different cross stood on the same spot.
Over time plaques and the names of veterans from other wars were added on the walls. However, plaintiffs said the commemorative elements were only added after the cross became controversial, an argument which the federal appeals court agreed with, the ABP reported. According to the LA Times, with the CA ruling, it will now require a full panel of appeals judges to reverse the ruling, or else the Supreme Court will have to agree to review the case and reverse it.
The ABP said that the cross has congressional designation and because of this, conservative Christian groups are hoping that Aggorney General Eric Holder will, through his Justice Department, request that the full 9th Circuit hear the case again and reverse the decision.
The ABP reported that Tony Perkins of the Family Research Council paralleled attempts to remove the cross to the 2001 destruction of ancient statues by the Afghan Taliban, who believed they were pagan. Perkins said, “In 2001, when militants set out to bomb two colossal Buddhist statues that had stood untouched in Afghanistan for more than a thousand years, the global community rightly condemned the actions as religious barbarism. Like the statues, the Mt. Soledad Cross is a monument to America’s cultural history, a symbol of our Christian heritage and a tribute to brave Americans who laid down their lives in our nation’s cause. Their memories should not be besmirched.”