A federal appeals court ruled Jan. 3 that a cross displayed on public property in San Diego, California, is unconstitutional.
The Mt. Soledad memorial stood in a separation of church and state battlefield for decades and now only one battle remains.
Two Vietnam War veterans filed suit against the city thirteen years ago, saying the cross, erected on a parcel of public property known as Mount Soledad, violated the California Constitution’s “No Preference” clause. The clause specifies that it is illegal to display a religious symbol on public land.
The most recent case was related to one of two bills passed Jan. 24 by the U.S. House of Representatives. Rep. Duncan Hunter, whose 52nd Congressional district is adjacent to Mount Soledad, introduced the “War Memorial Protection Act,” which calls for the inclusion of religious symbols on war memorials and serves as a response to the U.S. 9th Circuit Court of Appeals’ ruling on Jan. 24.
That same day, the House also passed the World War II Memorial Prayer Act, a bill calling for a plaque inscribed with the prayer Franklin D. Roosevelt said on D-Day morning to be placed at the World War II Memorial in Washington, D.C.
The Liberty Institute, which is representing the Mount Soledad Memorial Association overseeing the monument, is appealing the case to the Supreme Court.
Jeffrey Mateer, from the Liberty Institute who is arguing the case, said that based on the last couple of court decisions, he anticipates the Supreme Court will reverse the decision and hold that the memorial cross is unconstitutional.
The Liberty Institute also represents the Veterans of Foreign Wars, who are the caretakers of a cross that in 2010 in the case Salazar v. Buono, the Supreme Court allowed to remain in the Mojave Desert. Justice Anthony Kennedy wrote for a 5-4 majority and said, “The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.”
The judge who wrote the opinion declaring the Mount Soledad case unconstitutional was the only judge who did not vote in favor of the Mojave Desert cross, Mateer said. “I hope the Supreme Court will fix this like they have in other cases,” he added.
“A cross evokes all of the crosses in Arlington Cemetary and Normandy,” Mateer said. “In the case of Mount Soledad, that’s the symbol the veterans in the 1950s chose to honor their following comrades. Those veterans fought and they chose that this symbol was what they wanted to be represented by.”
However, not everyone believes a cross is inclusive to all Americans.
“They should have a war memorial that represents all veterans, not just Christians,” said Bruce Gleason, head of city’s largest atheist group, Skeptics. “The U.S. government was founded on the basis of the majority not being in control over the minority,” Gleason said. “The tyranny of the majority should not control the minority.”
Gleason said that while the majority of area residents do not disapprove of the memorial, “It does not matter how people react when it comes to something unconstitutional.”
Gleason compared the case to the Allah Test: “Replace Christians with Muslims and replace their Christian God with Allah. How would people feel about that?” he asked.
“This is a very tight rope we are treading,” Gleason said. “You can see politics happen today where religion is everywhere.”
The current 43-foot cross was constructed in 1954 to replace earlier versions, the first of which was erected in 1913. On Easter Sunday 1954, the cross was dedicated to “Our Lord and Savior, Jesus Christ” as a tribute to veterans of World War I, World War II, and the Korean Conflict. For decades, the only memorial services occurring at the site were on Easter Sunday, not secular holidays such as Memorial Day or Veteran’s Day, until a lawsuit was filed in 1989 claiming the cross violated the US Constitution’s First Amendment Establishment Clause. Since then, the cross has been in constant litigation.
After the first lawsuit was filed in 1989, elected officials within the San Diego City Council, US Congress, and even the White House have favored and/or voted for the cross’s presence. Nonetheless, the Judicial Branch has fairly consistently ruled that the cross’s presence on public property violates the US Constitution. After each ruling against them however, the cross’ supporters engineer new mechanisms designed to maintain the cross’ presence on Mount Soledad.
As part of the effort to discover a Constitutionally legal mechanism to maintain the cross on Mount Soledad, in the mid-2000s elections were held and ownership of the land beneath the Mount Soledad cross was transferred from the city to the U.S. Department of Defense. Supporters hoped that the cross would be safe from removal if Congress declared it a national war monument.
By May of 2006 however, Federal District Court Judge Gordon Thompson, Jr.—fifteen years after his first decision in 1991, ruled that “It is now time, and perhaps long overdue for this court to enforce its initial injunction,” and gave the city 90 days to remove the cross or face a fine of $5000 a day.”
The City of San Diego appealed to the US Supreme Court, which refused to hear the case, and years of further legal wrangling ensued.
The U.S. Supreme Court provided a more formal test of whether religion and state was being unconstitutionally mixed in its 1971 Lemon vs. Kurtzman ruling, also known as “The Lemon Law,” which is used with legislation concerning religion must pass all three “Lemon test” prongs to be constitutional: The statue must have secular legislative purpose, its primary purpose may not advance or inhibit religion, and it may not excessively entangle government with religion.
Gleason said that while putting a statue of a horse-mounted soldier on a war memorial represents every soldier and serves a secular purpose, erecting a huge cross on that same memorial does not. “It entangles Government with religion,” he said.