Feature Story - February 2011
War Memorial Cross Dealt Legal Setback
In the latest turn of events, the appellate court reversed a 2008 decision that the cross is part of a larger war memorial honoring veterans, and serves as a symbol of service.
A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco recently ruled against the constitutionality of a long-standing war memorial cross in a San Diego park.
Originally erected in 1913, the present version of the Mount Soledad cross was dedicated as a Korean War memorial on Easter Sunday in 1954. The 43-foot monolith was later altered to honor fallen U.S. military personnel from other conflicts.
The legality of the cross, which stands on public land, has been mired in the courts since 1989, when an atheist sued the city of San Diego for removal of the memorial.
Vietnam War veteran Phillip Paulson had argued that the monument was intended as a religious symbol, and not merely a monument to veterans, as claimed by the city.
In the court's 50-page ruling, Judge M. Margaret McKeown, wrote, "The memorial, presently configured, and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause (of the U.S. Constitution).
More fundamentally, this war memorial, with its imposing cross, stands as an outlier among war memorials, even those incorporating crosses. Contrary to any popular notion, war memorials in the United States have not traditionally included nor centered on the cross and, according to the parties' evidence, there is no comparable memorial on public land in which the cross holds such a pivotal and imposing stature, dwarfing by every measure the secular plaques and other symbols commemorating veterans.
The use of such a distinctively Christian symbol to honor all veterans sends a strong message of endorsement and exclusion. It suggests that the government is so connected to a particular religion that it treats that religion's symbolism as its own, as universal.
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. We take no position on those issues," McKeown wrote.
The decision was applauded by the American Civil Liberties Union.
Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, said, "We are pleased that the court recognized the fundamental principle barring the government from playing favorites with religion. Unlike religious symbols on individual headstones that appropriately reflect the personal faiths of fallen American soldiers, when the government displays a giant sectarian symbol as a national war memorial, it sends a divisive message valuing the sacrifices of some service members above all others."
Likewise, David Loy, legal director of the ACLU of San Diego & Imperial Counties, said, "We honor those who have served, but the Constitution does not allow the government to exclude non-Christians by endorsing a clearly religious symbol. The court is correct to find a violation of the First Amendment."
Robert Zweiman, past national commander of the Jewish War Veterans of the USA, stated, "We are grateful to the Ninth Circuit for its recognition that the Establishment Clause of the First Amendment affirms the contributions of diversity in American democracy without preeminence to any single religion."
Rob Boston with Americans United for Separation of Church and State, said, "The bottom line is simple: men and women of many different faiths and philosophies have died protecting our country. The cross does not–and, indeed, cannot–memorialize them all.
The idea of the cross as a secular symbol seems to be growing. Even some Supreme Court justices have adopted the idea. But it's patent nonsense, and serious Christians ought to be the first ones to be alarmed by the notion that their most sacred symbol is on the verge of being co-opted by the government.
The answer is to move the cross to private property. I'm sure plenty of churches in the area would like to have it. Once that's done, public officials in Southern California should get to work transforming the Mount Soledad site into a proper war memorial that honors all of our brave veterans–not just those who happen to be Christian," Boston said.
Boston's sentiments were echoed by Arielle Gingold, deputy director for public policy of Interfaith Alliance.
"The cross has a long history of use as a burial marker, including in military cemeteries, and as a veterans' memorial. Reviewing this history leaves no doubt that the cross is a decidedly Christian symbol.
In light of this history and the continued prominence of the cross as a religious symbol, the effort to justify its public display by branding it as secular offends Christians who cherish the cross and its central place in the tradition and iconography of their faith.
Once the cross is understood for what it is–an unmistakable symbol of a particular religious tradition–its display by the government sends a message of exclusion and disfavor to those who do not share that tradition," Gingold stated.
The ruling was criticized by the American Center for Land and Justice, which filed a friend-of-the-court brief in support of the war veterans memorial on behalf of 25 members of Congress. ACLJ Chief Counsel, Jay Sekulow, said, "The decision represents a judicial slap in the face to the countless military veterans honored by this memorial. This flawed decision 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. We believe the appeals court got this decision wrong, and we look forward to the case going to the Supreme Court, where we're confident this decision will be overturned."
Alliance Defense Fund Senior Counsel, Joseph Infranco, stated, "War heroes have earned the right to be remembered. 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.
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.
No one is harmed, constitutionally or otherwise, by the presence of a cross on a war memorial. There is great harm to tearing these memorials down. The memorial cross should stand in honor of the sacrifice made by American troops," Infranco said.
Family Research Council President, Tony Perkins, noted, "This decision by a three-judge panel of the Ninth Circuit displays hostility toward religious imagery in the public square that ignores these essential aspects of religious liberty and American tradition.
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 Mount 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.
This is the latest sad chapter in a decades-long fight over the Mount Soledad cross. A Ninth Circuit panel glossed over several important aspects of this complicated case, failing to fully consider their legal importance, and then went on to apply the wrong test to decide this case. The Mount Soledad cross is fully constitutional," Perkins said.
Charles LiMandri, an attorney for the Thomas More Law Center, took issue with the court's statement that the cross could remain if it were changed somehow to make it less religious.
LiMandri was quoted by La Jolla Light as saying, "I think it would be offensive to people to modify it to make it something other than a cross. You shouldn't profane a symbol that has religious connotations to make it secular. That's almost worse than removing it."
LiMandri called the cross "a multifaceted, fully integrated, world-class war memorial with a symbol legitimately being used for a predominantly secular purpose."
Liberty Institute, which represents the American Legion in this case, issued a statement, which in part, read, "This is part of a national trend to remove crosses on federal land, regardless of whether the cross is part of something as sacred as a veterans memorial."
Jimmie Foster, national commander of the American Legion, said, "I am asking Attorney General Eric Holder to appeal this regrettable decision to the Supreme Court. The sanctity of this cross is about the right to honor our nation's veterans in a manner which the overwhelming majority supports. The American Legion strongly believes the public has a right to protect its memorials."
In addition, two California Republican Congressmen, Representatives Brian Bilbray and Duncan Hunter, sent letters to Holder and Defense Secretary Robert Gates, saying the cross should be vigorously defended.
"In recognition of the long history of the Mount Soledad Veterans' Memorial and its undeniable existence as a war memorial, it is imperative that the departments of Justice and Defense take action to protect this revered landmark. The Department of Defense, as the owner of the property, has an obligation to defend the monument, just as the Department of Justice holds the obligation to defend the federal government's interests as established by the Congress," Bilbray and Hunter wrote.
Said the American Legion's Foster, "Frankly, after having read the decision, I would say that it will take either the wisdom of King Solomon or the Supreme Court to resolve the issue."
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