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  • Resisting Accommodation: The ACLU and Mount Soledad

    A panel of the 9th Circuit of Appeals unanimously ruled this week that the Mount Soledad Cross, a memorial that now honors Korean War veterans and sits on federal land near San Diego, amounts to a violation of the Establishment Clause of the U.S. Constitution.

    The issue of memorial crosses and other religious markers on land that is now or has been public property has been much on the mind of the judiciary lately. In fact, just last April, a closely divided Supreme Court ruled in the case of a memorial cross in the Mojave Desert that efforts by government to accommodate such displays rather than destroy them do not necessarily violate the First Amendment.

    Each of the war memorial cross cases has involved a lengthy history of attempts by government and private parties to resolve the complaints—by a retired Catholic park ranger in the Mojave case and Jewish War Veterans represented by the ACLU in the Mount Soledad case—through modifications in ownership of the sites on which the memorials are located. In the Mojave case, where the cross was first erected in 1934, Congress sold the land to a private veterans group that now maintains the spare memorial (rendered even sparer after vandals stole the simple seven-foot cross last May). In the Mount Soledad case, after 21 years of litigation to date and multiple efforts by the city of San Diego to transfer some or all of the site to private hands, the memorial now sits on federal land that was acquired through a congressionally approved act of eminent domain, which resulted in its being designated a national war memorial.

    Accommodation does not, however, seem to be in the lexicon of the ACLU. In the Mojave case, writing for the majority of the Supreme Court, Justice Anthony Kennedy deplored the lower court’s decision to nullify the entire land transfer to private hands, writing:

    A Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions and patient striving help secure an honored place in history for this Nation and its people.

    Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.

    Justice Kennedy’s words seem to imply that the Supreme Court will ultimately look favorably, if narrowly, on the idea that nothing in the U.S. Constitution requires the hunting down and removal of all religious symbols on public property, much less the voiding of agreements by government to transfer public land on which some memorials rest into private control. The ACLU begs to differ and is seeking, in the Mount Soledad case, either the dismantling of the cross, its sale to an Episcopal church across from the memorial site, or an auction of the site to the highest bidder with no intention expressed by government that the cross remain where it has stood in one form or another since 1913.

    Champions of removing religious symbols like these sometimes attempt to claim that they do not seek to uproot “the crosses, row on row” that exist around the globe in places like Normandy. They argue that these gravesites are individual, not an expression of a nation’s corporate remembrance and gratitude—a distinction that is unlikely to register easily when one views any of these sacred places from a wide vantage point. But a case that could reach the U.S. Supreme Court even sooner than any appeals in these two cases may put this issue in sharper relief.

    Just before Christmas, the 10th Circuit Court of Appeals refused to hear an appeal of a panel’s ruling in American Atheists v. Duncan that 14 roadside crosses erected in the memory of Utah state troopers killed in the line of duty must come down. Courts can always find distinctions, but the crosses, though they sit on public land, honor individual law enforcement officers and were emplaced along state highways with the permission of the slain troopers’ families. The plaintiff, American Atheists, Inc., objects to the inclusion of the logo of the Utah Highway Patrol on the crosses, but the solution they seek is to have the individual crosses taken down.

    This case, involving multiple roadside crosses and not the larger memorials in the desert and seaside, may be where the Supreme Court next addresses the issue and chooses between accommodation on the one hand and on the other the ACLU and others’ long march to establish a public square stripped of religious imagery and a national memory that honors that heritage.

    Posted in Legal [slideshow_deploy]

    24 Responses to Resisting Accommodation: The ACLU and Mount Soledad

    1. Pingback: Tweets that mention The Foundry: Conservative Policy News. -- Topsy.com

    2. Wildcat from Dallast says:

      That panel of the 9th Circuit of Appeals that ruled this cross violates the establishment clause of the Constitution appears to be comprised of severely deranged individuals incapable of fully understanding the document they ruled has been violated. That decision should be appealed to the Supreme Court for a more common sense ruling where there is a much greater probability for the application of common sense to prevail.

      The follow on action taken by the Supreme Court against this panel from the 9th Circuit of Appeals should be to severely admonish them thereby setting them up for impeachment. Many of our nation’s activist judges should be dealt with harshly for being both over education yet still lacking the common sense of your average middle school student has when it comes to pursuing their own desires rather than their responsibilities.

    3. Bobbie says:

      ACLU influences intolerances. Some people can't overlook a cross that reflects no religion but is a symbol of the greatest man on earth's death? Then the big ACLU has to come in to draw attention to PEOPLES PERSONAL LACK OF STRENGTH.

      Oh no it's a cross!!!!! I'm so offended by a t. It's gonna bite. It's gonna hurt because I said so! oh no where can I hide? Help me! Help me! I saw a t on private property!! OH NO! WHAT AM I GOING TO DO?

    4. Bobbie says:

      I know…call the ACLU. They'll protect my sensitivities.

    5. Susan Schmitz San Di says:

      We have gone astray.

      War memorials should contain the U.S. Flag as it's centerpiece, not

      a religious symbol.

      The military doesn't serve under the cross; it serves under the flag.

      It's extremely hypocritical to defend religious artifacts as government

      memorials. There is government, and there is religion. Religious artifacts

      belong on church property; flag belong on government property.

      It's disrespectful and piggish to have one religion's artifact displayed as the central element when we are all created equal and should be honored equally. This shouldn't be an issue. Goverhment = flag, not a cross. I'm a Christian and am ashamed at the way this is being played out. Jesus would honor all vets with a flag, not his cross.

    6. Ed Foster, Brevard, says:

      Dear Ms. Schmitz,

      Would you also remove the Crosses and the Stars of David from the graves at Arlington National Cemetery? Would you solicit permission from the families of those buried there? Or just desecrate the graves?

    7. Bill Hylton says:

      There are none so intolerant as the advocates of tolerance.

    8. Norm CT says:

      Why isn't this issue put up to the people to vote? Why are we becoming a country catering to special interest groups? Why is the will of the people being put aside to please special interest groups and the ACLU? Guess they have too much money and time on their hands to do anything constructive. Better they waste our taxpayer dollars clogging up our court system. Obviously they don't believe in a religious being so why don't these groups use their time and money to help the poor and disadvantaged? If, as they believe there is no supreme being to help mankind then they need to step up to the plate and put the money to good use!!!!

    9. John says:

      So what are we going to do with all the crosses that we have in our National Cemeteries?

    10. Dennis Georgia says:

      The ACLU are a bunch of bigots, they should be thrown out of America.

    11. Lee says:

      All the courts do is throw their weight around. makes em feel important and needed.

    12. (Mr.) Whitney Galbra says:

      The ACLU and the End of Tolerance

      The systematic intolerance of the American Civil Liberties Union over the decades has succeeded in degrading American society into incoherence.

      When one reads enough ACLU literature and when one pays attention to what the ACLU says and does, one realizes that what the ACLU is up to goes way beyond anything to do with Constitutions and Bills of Rights.

      The ACLU seems to treat American citizens as free-floating molecules, unattached by any common interest, magnetism or valence. Whenever any two “molecules” find a common interest or a shared purpose in life, suddenly there exists an “ism,” an “ideology” that shuts all other molecules out, creating a “class interest” that cannot be tolerated. The ACLU’s brand of egalitarianism serves as no less than a chemical solvent, dissolving the very social glue that creates society itself, condemning that society to the lowest common denominator of human achievement, motivation and values. And we have paid the price

    13. Edward MacIsaac, San says:

      The Mount Soledad Marker was put up in 1955 to replace a wooden one. So this was Constitutional until 1988. In 1989 it became a real problem.

      One thing I find confusing, How dies an atheist testify in court? Do they swear to be truthful by a Creator they do not believe in?

      The Declaration of Independence says all our rights flow from the Creator. This is a simple exercise in logic.

      No Creator, No Rights, No Courtroom.

    14. Roger, Idaho says:

      ACLU will continue their attacks on American Christian Values until Christians choose to educate themselves regarding the protections afforded to us all by our United States Constitution. Once educated, we must stand together to politically elect those who will support and defend our Constitutional rights.

    15. Andrew, VA says:

      Ms. Schmitz is right. At Arlington National Cemetery, the tombstones have crosses, stars, tao cricles, wiccan symbols, athetist nuclear atoms — and even the crescent moons of the Muslim faith. But they all have an American flag on the graves.

    16. Jim, Richmond VA says:

      So I guess the medals issued by the Navy (Navy Cross) and Air Force (Air Force Cross), that are second only to the Medal of Honor, are also unconstitutional.

    17. Glenn, Scottsdale, A says:

      It seems that we continue to move toward 'minority rule.' If someone (O'Hare) doesn't like prayer in the classroom or the Pledge of Allegiance or crosses, the majority has been made to surrender. Similarly, if one Muslim is or 'might be' offended by something, everyone else has to avoid doing that 'something'. The whole thing is up-side down.

    18. Johnny Helms, Charlo says:

      The "establishment clause" in our First Amendment isn't addressing the establishment of a religion by our government. It prohibits our government from prohibiting the "free exercise" of religious establishments. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." "Establishment" is a noun, not a verb, and is proceded by the indefinite article, "an." Establishment is used here referring to an established religion. It is used in the same way we speak of someone's business establishment. What the ACLU and other socialistic/liberal organizations are attempting to do is in fact violating the First by trying to do precisely what it forbids the gov from doing, i.e., passing laws that prohibt the free exercise of our religious establishments.

    19. Brad, Chicago says:

      Is the abolition of religious symbols from government at all similar to promoting the religion of atheism?

      I can understand not using a religious symbol on new memorial sites, if less than all of the people being honored use that symbol. I don't understand why we have to tear down something that already exists, though. Can there be nothing said of historical significance? A symbol is a symbol and you can read into it whatever you like. It doesn't have to have only religious significance.

    20. Spiritof76, NH says:

      Why don't we organize the marines to defend the burial ground of WWII marines that made the eultimate sacrifice? As President Jackson said in reaction to a Supreme Court ruling, "let them enforce it". If we are ruled by minorities and special interest groups, the courts interpret Constitution to what it is not and people are left with no choice in the matter, is that America?

    21. Zach, VA says:

      The ACLU is not an advocate of nuetrality. It does not sincerely seek to advance the principles that the Constitution stands for. It is an anti-Christian group of activists. We must keep in mind that there are those who are Christians, and everyone else who are not. These two groups will be in constant conflict until the return of Christ. We see this especially played out in instances like this.

    22. Peter S. Wainwright, says:

      The comments posted above by one who claims to be a Christian with authority to know Jesus' position on this issue, one who is likely nether a veteran of our U.S. Military or any police agency, are at odds with Jesus statement to his followers, "A new Commandment I give unto you, That ye also love one another." (John 13: 34)

      If loving families, friends and comrades of our police or military fallen are prohibited by ACLU inspired court order from expressing their love in the form

      of a Cross or Star of David at a burial or other appropriate site (along with our glorious stars and stripes), where has our liberty and freedom gone? Where

      is love demonstrated for those who have sacrificed life for us all?

    23. Sandra, San Antonio says:

      The ACLU needs to be abolished and no further taxpayer dollars be used to fund their existence. I wonder if they would take on my suit against the ban on crosses? It amazes me how far we have gone to not to hurt someone's feelings. Someone will always have a grievance against something so does that make everything illegal?

    24. How is the ACLU's action different from the Taliban's destruction of the Bamiyan Buddahs in Afghanistan in 2001? Instead of dynamite, they're using the 9th Circuit Court. It still amounts to one group systematically seeking the elimination of any public display of anything that does not agree with their particular beliefs.

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