9th Circuit Appeals Court Holds Soledad Memorial Cross Is ‘Unconstitutional’

By Deacon Keith Fournier

The Cross at the Mt. Soledad War Memorial

WASHINGTON, DC – January 7, 2011 – On Monday January 4, 2011, a three judge panel of the United States 9th Circuit Court of Appeals filed its long awaited opinion in what has been popularly called the “Mount Soledad Cross Case”, Trunk v. City of San Diego, Case No. 08-56415. In effect, they held that because the Cross is a Christian Symbol it must be removed from a war memorial.

I know that some who read my assessment will take exception. However, I will not “nuance” the anti-Christian bigotry revealed in the opinion of these three unelected black robed Federal Judges. They held that the Mount Soledad cross, which has stood on Mount Soledad since 1913, has somehow now become a violation of the Establishment Clause of the First Amendment to the United States Constitution simply because they say it has.

All who are concerned about the growing hostility toward religious speech and expression in the United States have watched this case with great interest.  I make my assessment as a constitutional lawyer who has long questioned the current establishment clause law in our Nation. In 1992 following the incomprehensible Supreme Court opinion in Lee v Weisman, while serving as the Executive Director of the American Center for Law and Justice, a public interest law firm, I wrote a law review article entitled “In the Wake of Weisman: The Lemon Test is Still a lemon but the Psycho-coercion Test is more bitter Still”.

In that article, after tracing the history of the interpretation of the Establishment clause of the First Amendment to the US Constitution and the developments of the last few decades, I predicted the insanity that would follow from the efforts of the Supreme Court to apply the so called “Lemon Rule” (named after the Courts 1971 opinion in Lemon v Kurtzman) and it’s ever expanding “interpretations” and permutations. That is precisely what has occurred.  We have experienced a judicial ping pong game of incomprehensible opinions requiring a showing that religious symbols have a “secular” purpose – as though religion and the common good are mutually exclusive!

Let me demonstrate the level of hostility toward religion and religious symbols in the Court’s own words. The Court, with great concern, took judicial notice that “After the Cross’s dedication in 1954″ there were “Easter services at the Memorial annually until at least 2000, and other religious ceremonies have been held there since. The annual Easter services included readings from the Bible, a Christian prayer and benediction, and songs such as “Jesus Christ is Risen Today” and “All Hail the Power of Jesus’ Name.” 

They decried the fact that, “The Cross’s importance as a religious symbol has been a rallying cry for many involved in the litigation surrounding the Memorial. LiMandri (a Catholic lawyer with the Thomas More Law Center seeking to preserve the cross) and the Thomas More Law Center were integral in devising the plan to designate the land as a national veterans’ memorial.”

They critically pointed out that the Thomas More Law Center “publicly characterized the campaign to save the Cross in religious terms-for example, as a “spiritual battle. LiMandri declared that “Christ won the war on Calvary. These are just kind of mop-up battles . . . . LiMandri also participated in a fifty-four day prayer movement in front of the Cross that opened with the singing of “Immaculate Mary,” and the prayer of twenty mysteries of the rosary.. Other Christian advocacy groups like the American Family Association, the American Center for Law & Justice, and Fidelis launched national petition campaigns for the Cross; an intercessory prayer movement was held by the Christian Defense Counsel outside the White House.”

This 9th Circuit opinion is an example of a growing governmental hostility toward religious faith, religious symbols, and, in particular, Christian faith and Christian symbols, in the public square. The effort to scrub the public square of such religious expression and symbols is a threat to religious freedom, runs contrary to our founding documents, and is unfaithful to our history as a free people. It also represents an incorrect application of the Establishment Clause, found in the First Amendment to the United States Constitution. 

This opinion also demonstrates that the 2005 Supreme Court decision of Van Orden v. Perry, a “ten commandments” case, has now made the illogic of Establishment Clause Jurisprudence even more pronounced in the United States.  Now, even the convoluted trail left by the Lemon case and its progeny can be abandoned by a Court, under the ruse of an “exception” to the Lemon analysis, only to be replaced by Judicial whimsy.

Federal Judges now make up their own rules by which they decide whether a religious symbol, especially a Christian religious symbol, will be allowed to stand on public land or in a public building. There is not even a pretense that the actual words of the Establishment Clause have any effect in this new world of the judicial oligarchy. The 224 page opinion rendered by the 9th Circuit in the Mt Soledad case is one more example of why it is absolutely essential that we reclaim the “Separation of Powers” doctrine and rein in Federal Judges and Courts.

The Establishment Clause is best understood as an “anti-establishment” clause. It was intended to prohibit the “establishment” of one particular religion – in the sense of a Federal or State sponsored Church which mandated adherence from unwilling citizens. The American founders fled coercive approaches to religion which compelled adherence to a particular sect. Yet, they were not anti-religious.

They were assuredly not against religious symbols or religious expression. Our history is filled with them. Or, more accurately, it once was. Religious symbols are no longer seen as a wonderful sign of the history of the West and the American founding by the new Judicial Oligarchs. Rather they are seen as a threat to the secularist order. When they are allowed they must be demonstrated to have been eviscerated of any religious meaning and somehow thereby rendered “secular” and acceptable.

This Court showed hostility toward the Cross writing, “[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 fact that the Memorial also commemorates the war dead and serves as a site for secular ceremonies honoring veterans cannot overcome the effect of its decades-long religious history…The Memorial’s relatively short history of secular usage does not predominate over its religious functions so as to eliminate the message of endorsement that the Cross conveys.”

They seemed particularly offended by the size of the cross noting “(W)e cannot overlook the fact that the Cross is forty-three feet tall. It physically dominates the Memorial, towering over the secular symbols placed beneath it, and is so large and placed in such a prominent location that it can be seen from miles away.”

The disjointed legal opinion concluded,  “[A]fter examining the entirety of the Mount Soledad Memorial in context-having considered its history, its religious and non-religious uses, its sectarian and secular features, the history of war memorials and the 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 Establishment Clause”.

Jay Sekulow, Chief Counsel of the American Center for Law and Justice, is one of our Nations’ leading constitutional lawyers. The ACLJ has been involved in the case as a “Friend of the Court” defending the monument and the Cross…As usual, the ACLJ’s summary of the 9th Circuit opinion is the clearest available and I commend it to our readers. The ACLJ called the 9th Circuits opinion a “Faulty Ruling.” I agree. However, it is much worse than that. It is one more example of a judicial oligarchy at work and a threat to religious freedom. 

Reprinted by permission from Deacon Fournier, this article first appeared in Catholic Online.

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