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Battle for Religious Freedom Continues
Our Fight on Mount Soledad
The Jewish Daily FORWARD
When did separation of church and state become a slogan rather than a core element of the American way of life? When did a cross become an ecumenical symbol that is appropriate for military memorials on federal property?
Regrettably, these questions remain unanswered — and our courts have not provided much in the way of clarity. This pattern continues with the federal appeals court ruling earlier this month regarding the cross on San Diego’s Mount Soledad.
The involvement of the Jewish War Veterans as a plaintiff in the Mount Soledad case is part of our ongoing fight for the rights of Jewish service members and veterans and on behalf of the values enshrined in the Constitution.
Another ruling for separation of church and state.
December 4, 2011
Judges rule cross at Calif. park unconstitutional
(AP) – 2 hours ago
SAN DIEGO (AP) — A war memorial cross in a San Diego public park is unconstitutional because it conveys a message of government endorsement of religion, a federal appeals court ruled Tuesday in a two decade old case.
A three-judge panel of the 9th U.S. Circuit Court of Appeals issued the unanimous decision in the dispute over the 29-foot cross, which was dedicated in 1954 in honor of Korean War veterans.
The court said modifications could be made to make it constitutional, but it didn't specify what those changes would be.
"In no way is this decision meant to undermine the importance of honoring our veterans," the three judges said in their ruling. "Indeed, there are countless ways that we can and should honor them, but without the imprimatur of state-endorsed religion."
Federal courts are reviewing several cases of crosses on public lands being challenged as unconstitutional, including a cross erected on a remote Mojave Desert outcropping to honor American war dead. Tuesday's ruling could influence future cases involving the separation of church and state.
U.S. Justice Department spokesman Wyn Hornbuckle said the federal government, which is defending the cross, was studying Tuesday's ruling and had no comment.
Gina Coburn, spokeswoman for the San Diego's city attorney's office, which was once a defendant in the case, said the cross will have to be removed from Mt. Soledad unless the federal government appeals and sends it back to a full panel of Ninth Circuit judges or the Supreme Court agrees to rule on it.
The Alliance Defense Fund, an Arizona-based Christian legal group, called Tuesday's decision an insult to troops.
"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," said Joe Infranco, the group's senior counsel.
The ruling is the latest in a series of court decisions that have deemed the Mount Soledad cross unconstitutional because it stands on public property.
The legal fight began in 1989 when atheist Philip Paulson sued the city of San Diego over the cross. Paulson, a Vietnam War veteran, contended that the cross excludes veterans who aren't Christian. A Jewish war veterans group has also been a plaintiff in the case along with the ACLU.
State and federal judges have ordered the cross removed, saying it represents an unconstitutional endorsement of one religion. But in 2006, the U.S. Supreme Court blocked an order that the city take it down that summer, giving lower courts time to hear appeals.
City officials have argued that the cross is part of a secular war memorial, and the cross has been embraced by San Diego residents who in 2005 overwhelmingly approved a measure to preserve it by donating it to the federal government. A judge declared the measure unconstitutional.
Infranco said Tuesday that no one is harmed by the presence of a cross on a war memorial.
"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," he said.
David Blair-Loy of the ACLU of San Diego & Imperial Counties said there are other ways to do honor troops.
"We honor those who have served, but the Constitution does not allow the government to exclude non-Christians by endorsing a clearly religious symbol," he said. "The court is correct to find a violation of the First Amendment."
Rev. John Fredericksen of Orlando, Fla., was among a steady stream of people who visited the white cross Tuesday atop Mt. Soledad, which affords spectacular views of the Pacific Ocean and surrounding La Jolla.
"For those who are offended, they can move or look somewhere else," the 56-year-old Christian pastor said. "Christians are not asking every mosque or synagogue to be torn down. Why tear down a symbol of Christianity? Let them find or make their own memorial."
Michael Aguirre, a former San Diego attorney who has followed the case closely, said cross supporters will have to counter the court's analysis that the cross was used historically to promote Christianity.
The ruling recounts that the cross was dedicated on Easter Sunday and used for religious gatherings for nearly three decades before it became a war memorial. It said La Jolla has a "well-documented history" of anti-Semitism from the 1920s to around 1970.
"This cross marks La Jolla as a Christian community, that's basically what (the judges are) saying," said Aguirre, who is now in private practice. "It was a cross for decades in a community with a history of anti-Semitism."
Associated Press writer Elliot Spagat contributed to this report.
Copyright © 2011 The Associated Press. All rights reserved.