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.

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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.

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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 making 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.

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Just before Christmas, the 10th Circuit Court of Appeals refused to hear an appeal of a panel’s ruling 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, and not the larger memorials in the desert and seaside, may be where the Supreme Court resolves the issue for now and chooses between accommodation and the ACLU and others’ long march to establish a public square stripped of religious imagery and a national memory that honors that heritage.

Source material can be found at this site.

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