LAW OF THE LAND 

Ninth Circuit ignores Supreme precedent in Mojave case

A three-judge panel of the Ninth Circuit Court of Appeals has decided a memorial cross on federal land on Mt. Soledad, Calif., violates the U.S. Constitution.

In a 3-0 ruling in the Jewish War Veterans v. City of San Diego case, the panel decided that the 29-foot concrete cross, which has stood for 57 years, constitutes a government endorsement of religion and therefore violates the First Amendment's establishment clause.

"The question, then, is whether the entirety of the Mount Soledad Memorial, when understood against the background of its particular history and setting, projects a government endorsement of Christianity. We conclude it does," wrote Circuit Judge M. Margaret McKeown, a Clinton appointee.

"The decision represents a judicial slap in the face to the countless military veterans honored by this memorial," said Jay Sekulow, chief counsel of the American Center for Law and Justice, which filed an amicus brief in the case on behalf of 25 members of Congress. "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."

Why are crosses being ruled unconstitutional? Read America’s War on Christianity: In God We Trust - autographed!

"Unfortunately, the decision does not surprise me based on the philosophical beliefs and records of the judges on the panel. The

decision was more likely than not," said Alliance Defense Fund Senior Counsel Joe Infranco. ADF filed an amicus brief in the case on behalf of the American Legion.

"The panel has an extreme view of the establishment clause that amounts to hostility to religion," Infranco explained. "The Constitution requires that religious views and expressions be accommodated. There's a kind of disconnect in the way certain judges look at the establishment clause, and it becomes a vehicle for hostility to religious expression.

"If the case had come up in a different federal circuit, there likely would have been a different result," said Infranco. The Ninth Circuit, infamous for its activist decisions, is the most-reversed of America's circuit courts.

"The veterans are outraged over these cases. All the plaintiffs do is find a few individuals who claim to be offended by that cross at the site, and the premise of this lawsuit is the offense of a few individuals trumps the way veterans choose to honor fallen veterans. Veterans should be allowed to honor heroes, many of whom gave their lives for this nation, in the manner they choose," Infranco added.



"Certainly we're upset with the decision," confirmed Joe March, national director of public relations for the American Legion, the nation’s largest veterans organization. "We believe it will finally get corrected once and for all when it gets to the Supreme Court. We had filed an amicus curiae and we intend to do so once again. When the government appeals to the Supreme Court, the American Legion will be there again. It's the right thing to do."

The American Legion has already called officially on Attorney General Eric Holder to appeal the case, which was argued by Justice Department attorneys on behalf of the Department of Defense.

"I am asking Attorney General Holder to appeal this regrettable decision to the Supreme Court," said Jimmie L. Foster, national commander of the American Legion, in a news release. “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.”

The ACLU, which brought the suit on behalf of the Jewish War Veterans, did not return a request for comment.

Infranco accused the Ninth Circuit judges of ignoring the precedent set by the Supreme Court in a similar case involving a memorial cross erected by the Veterans of Foreign Wars in the Mojave National Preserve.

"I think their decision was inconsistent with the Mojave decision. The Mojave decision [Salazar v. Buono] did not rule directly on the cross because there was another issue that resolved the case more easily, but Justice Kennedy, who wrote the majority decision, left a hint the size of a barn door that crosses that memorialize the dead … do not violate the Constitution. In my view the court failed to take the very clear hint from the Supreme Court. We're hoping the Supreme Court will agree to hear this case and reverse this awful decision."

The first cross was erected on Mt. Soledad in 1913, and the large concrete cross was erected in 1954 to replace a cross blown down by heavy winds in 1952. According to the Ninth Circuit decision, the 1954 cross was dedicated, "as a reminder of God’s promise to man of everlasting life and of those persons who gave their lives for our freedom."

"Litigation over the cross began in 1989. Veterans responded in the 1990s by adding plaques, bollards and flags intended to honor veterans, and by holding regular memorial services at the site.

By: Brian Fitzpatrick, January 04, 2011
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