2006 file photo / Union-Tribune
A judge says the cross atop Mount Soledad “communicates”
primarily nonreligious messages of military service and sacrifice.
Posted on 07/30/2008 11:56:12 AM PDT by NormsRevenge
The giant cross atop Mount Soledad can stay, a federal judge ruled yesterday.
The La Jolla landmark has been the subject of nearly 20 years of litigation, public votes and legislative maneuvers as critics complain it's unconstitutional to have a religious symbol on public land.
But yesterday, U.S. District Judge Larry Burns said the cross – visible for miles – has become a memorial to veterans, and its secular message outweighs any religious meaning.
“The Court finds the memorial at Mt. Soledad, including its Latin cross, communicates the primarily non-religious messages of military service, death, and sacrifice,” Burns wrote.
As a result, the congressional takeover of the cross by eminent domain – an action that followed another federal judge's order that the cross could not stand on city-owned land – is constitutional, Burns ruled.
Charles LiMandri, a lawyer fighting the cross's removal, said he was delighted though not surprised with the ruling.
“The people of San Diego wanted and deserve this result,” LiMandri said. “They're not going to be able to take that cross down, and they should just deal with it.”
The ruling troubled the lawyers who challenged the transfer of the cross and surrounding veterans memorial to the federal government.
“The central fact of the case is it's a 43-foot-tall cross,” said David Blair-Loy, legal director of the local chapter of the American Civil Liberties Union. “There's nothing more religious than a cross.”
Philip Paulson, the late atheist and Vietnam War veteran, sued over the cross in 1989, and two years later, U.S. District Judge Gordon Thompson said its presence on city land violated a ban on government preference for religions in the California Constitution.
In 2006, after giving the city years to fight or otherwise deal with his ruling, Thompson gave the city an ultimatum: take down the cross or pay daily fines.
That year, Congress passed a law taking the cross and the land on which it sits by eminent domain and giving it to the U.S. Department of Defense.
Paulson died in 2006. Two lawsuits were filed after the federal takeover, one by a friend of Paulson's, another by the Jewish War Veterans of the United States of America and three people.
Unlike Thompson, Burns based yesterday's ruling on his reading of the U.S. Constitution, which has a more lenient standard on how religious symbols might appear on federal property than the state constitution.
Two Supreme Court decisions on which he relied were decided by 5-4 votes in 2005. In one, the court said the Ten Commandments couldn't be displayed in Kentucky courthouses because they were “unmistakably religious,” but their display among other monuments on the Texas Capitol grounds was constitutional.
Steve Hut, an attorney for the Jewish veterans group and other cross critics, said he thinks Burns misunderstood the law.
“We think we will ultimately be able to persuade a higher court our view of the facts and the law are correct and Judge Burns' view is not,” Hut said.
Others expect just such an appeal, even if they don't support it.
Harley-Davidson dealership owner Myke Shelby, who is Jewish, helped spur a local ballot measure calling for the federal takeover.
Reached in Pennsylvania last night, Shelby said, “I'm thrilled to hear it. I think it's a long time coming, and hopefully this is it, and the people who want to destroy that war memorial and want to destroy the cross will realize it's over, let it alone, let it be done, walk away.”
William Kellogg, president of the nonprofit Mount Soledad Memorial Association, which built and maintains the cross, said the judge echoed what his association has been saying for years – that the memorial is meant for veterans, not Christians.
“That makes me feel terrific because that truly is what it's all about, honoring veterans,” Kellogg said. “Our mission has been to communicate that to the public for so many years, so I think the language there is very appropriate.”
What's changing: A federal judge ruled yesterday that the cross is more a secular memorial to war veterans than a statement promoting religion. He said the cross can stay on federal land.
The future: Opponents of the cross are considering whether to appeal.
Online: Read the judge's 36-page ruling at uniontrib.com/more/documents.
Online: Read the judge’s 36-page ruling at uniontrib.com/more/documents.
http://www.uniontrib.com/more/documents
These ACLU people are not 'civil libertarians'.
L
I can see this being won on appeal in a close decision at the Supreme Court with the pro-cross side winning. If not, simply sell the land to a non-profit veterans group and it becomes private land and the ACLU jerks can go pound sand until it turns to glass.
There are no critics - it was one critic that sued. He was an atheist. The people of the city voted many times to keep it and this one guy kept it in the court system. I believe however he recently died and is worm food.
This one has been going on for years.
The Godless won’t give up.
fyi
The Judge on this latest go-around.. GW 2003 appointee
Burns, Larry Alan
Born 1954 in Pasadena, CA
Federal Judicial Service:
Judge, U. S. District Court, Southern District of California
Nominated by George W. Bush on May 1, 2003, to a new seat created by 116 Stat. 1758; Confirmed by the Senate on September 24, 2003, and received commission on September 25, 2003.
U.S. Magistrate Judge, U.S. District Court for the Southern District of California, 1997-2003
Education:
Point Loma College, B.A., 1976
University of San Diego School of Law, J.D., 1979
Professional Career:
Deputy district attorney, San Diego County, California, 1979-1985
Assistant U.S. attorney, Southern District of California, 1985-1997
Race or Ethnicity: White
Gender: Male
Paulson died in 2006.
Guess I remembered correctly.
suck on that Anti-Christian Lawyers Union.
They are uncivil haters.
Welcome to San Diego. Many fine FReepers here.
Perhaps the next target of the athiests will be the letter “T” since it is in the form of a cross, thus showing making every piece of printed paper a “religious symbol.”
Fear the Cross, Fear the “T” -— and then they can campaign against t-shirts!
I am so sick of the surrender to Federal judges. Someone please read the Constitution!
It was on Federal property. From the text: "That year (2006), Congress passed a law taking the cross and the land on which it sits by eminent domain and giving it to the U.S. Department of Defense."
"The central fact of the case is I lost to a cross,” said David Blair-Loy. "Because I wasn't good enough...Bawwwwwwwwwwwwwwww."
Cheer up David, I'll bet your great-grand-children will enjoy it.
LiMandri is a jerk.
Who will defend us normal Bay Area/SF folks from ad hominem attacks on FR?
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