Fighting for History on Mount Soledad

A 29-foot-tall cross erected on top of Mount Soledad in 1954 to honor returning veterans of the Korean War (and which replaced a cross that had been there since 1913) was scheduled for removal, thanks to the ACLU and their minions.

But Justice Kennedy, acting for the Supreme Court, has issued a stay. This, in spite of the fact that just three years ago the Court declined the opportunity to get involved in the case.

In its most recent case involving religious symbols, the Supreme Court ruled last year in a pair of 5-4 decisions that overtly religious displays are unconstitutional, but historic ones are allowed.

The Court, then led by Chief Justice William H. Rehnquist, struck down framed copies of the Ten Commandments in two Kentucky courthouses while upholding a 6-foot granite monument on the grounds of the Texas Capitol.

What a difference a conservative president makes. Even one as marginally conservative as Bush.

The High Court's involvement will be interesting because of the Federal vs. State issue. You see, the plaintiff, Phillip Paulson, attacked both the cross on top of Mount Soledad and the tiny, almost unnoticeable cross in the La Mesa city seal in 1989. In 1991, Judge Gordon Thompson, Jr., a Richard Nixon nominee that is described as a "no-nonsense, law-and-order sort of judge", ruled that the Mt. Soledad cross violated Article I Section 4 of the California Constitution. The federal constitution was not cited.

So even though the Supremes have been allowing monuments with religious connotations to stand when they represent history (as the cross on Mount Soledad obviously does), this looks like a state rights issue.

However, it is likely that this case will revolve around the constitutionality of the land transfers that the city council initiated in an effort to sidestep the legal issues and save the cross.

In 1992, the city council voted to sell 222-square feet of the the public park to a private buyer, the Mt. Soledad Memorial Association. The cost was pre-set to $14,500 and no other bids were considered. The 15' by 15' bit of land just happened to be directly beneath the cross that the court had ordered removed. In 1997 Judge Thompson ruled that the sale gave the appearance of preferential treatment to the Christian religion because of the size of the plot and the fact that no other bidders were solicited.

So in 1998 the city tried again, taking five bids for a half-acre around the cross and accepting the highest bid of $106,000. The winning bid came from the Mount Soledad Memorial Association and this time Judge Thompson upheld the transfer. But the infamous 9th Circuit overturned the decision 7-4, again citing the California constitution — this time Article XVI, section 5 which prohibits government from affording any financial advantage or subsidy to religion. It was this matter in which the Supreme Court declined to intervene.

In the meantime, the Mt. Soledad Memorial Association had taken advantage of the 1998 sale, pouring in nearly a million dollars to build a memorial to war veterans complete with flagpole and six concentric granite walls, selling over 1,700 plaques, 23 bollards and hundreds of pavers memorializing individual service men and women.

So what has changed since the last time the Supremes were petitioned?

In November of 2004, Representatives Duncan Hunter and Randy "Duke" Cunningham attached a rider to a spending bill that allowed the citizens of the city to designate the land a national veterans memorial, which was signed into law by President Bush in December 2004. The city council declined to do so, but a massive grass roots campaign gathered 73,000 validated signatures in just 23 days (more than double the number required), forcing them to put the issue in front of the voters.

Just five days before the vote, Superior Court Judge Patricia Cowett ruled that the issue could appear on the ballot but decided that a simple majority would not suffice; two-thirds of the voters had to agree because changes in city parkland required a two-thirds majority and "there was no guarantee that Congress would not change the memorial's designation someday." An almost insurmountable obstacle because "someday" something might happen.

Voters stunned everyone (even supporters) when the measure passed with the support of 76% of the voters. Under the terms of the transfer, the land would belong to the National Park Service but be maintained by the Mount Soledad Memorial Association.

Then Judge Cowett stepped in again, issuing a temporary restraining order stopping the transfer along with a "tentative 34-page ruling" that questioned the constitutionality of Proposition A, the very proposition that she approved just two months before! In other words, she ruled for it before she ruled against it. (Note: Patricia Cowett ran unopposed in the last election. I wonder how she will fare in the next?)

So the issue has returned to Judge Thompson's court and in May he ruled that the cross must be removed within 90 days or the city will be fined $5,000 a day for each day that it remains standing.

It looked like the end of the road for the fight for the cross, especially as the city council needs five votes to pass anything and the council membership stands at only six because Democrat members Michael Zucchet, Charles Lewis, and Deputy Mayor Ralph Inzunza were indicted on federal corruption charges.

But replacements were found and an appeal was mounted, but in late June the infamous 9th Circuit rejected the appeal, leaving only a seemingly useless appeal directly to the Supreme Court as the final option.

Which is why Justice Kennedy's stay is so important:

Phil Thalheimer, chairman of the war memorial group, said the ruling "borders on divine intervention."

"We were jumping up and down," he said. "For this to happen on July 3 -- the day before our Independence Day, which is about freedom of speech, freedom of religion, freedom of expression -- it couldn't have happened better."

This does not guarantee that SCOTUS will actually hear the case, much less that they will save the cross that was dedicated to those who put themselves in harms way to stop the spread of evil in Korea so many years ago.

But it offers hope. Hope that the desires of citizens will be placed above the fight of one man, backed by the ACLU.

Also see:

• Vagabondia — The Trouble with Judges
• Indepundit: Cruciphobia
• Stop the ACLU: Mt. Soledad Case Goes To Supreme Court
• Right on the Right: Stay Issued on Mt. Soledad Cross
• Captain's Quarters: Court Grants Stay On San Diego Cross
• Is this Life?: Another Attack on the Christian Right

Technorati Tags: Mount Soledad Cross, Honoring Korean War Veterans, ACLU, Anti-Christian Lawyers Union, Reasons Why the ACLU Sucks, Stop the ACLU, SCOTUS, Supreme+Court, Justice Kennedy, Atheist Phillip Paulson, Judge Gordon Thompson, Jr., Mt. Soledad Memorial Association, Church vs. State, Removing Christianity from America, War on Christianity, Rewriting the Constitution, Activist Judges, Superior Court Judge Patricia Yim Cowett, Ninth Circuit Court of Appeals, California Law, California Politics, San Diego, National Park Service.

Blog post #6099 in category Conservative Causes
posted 7 July 06

 

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Posted by b on Monday at 1:10 PM

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Posted by James on Thursday at 7:57 PM

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