About that Mt. Soledad ruling

First, some background via SignOn San Diego:

The 20-year legal fight over the cross on Mount Soledad took another turn Tuesday when a federal appeals court ruled the towering landmark on public land in La Jolla is an unconstitutional sign of government favoring religion.

The ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals was a blow to cross supporters, who have been battling efforts in state and federal courts to get the cross removed.

For now, opponents of the cross have prevailed. They have argued the Latin cross is an impermissible religious symbol on public land. Supporters have countered it is a secular landmark amid a larger memorial that honors military veterans and has no explicit religious meaning.

So you get the idea. I don’t want to go into everything dealing with this case, but there are a couple of things that bear looking at.

The decision is predicated on this [Pages 207-108]:

There is simply “no evidence . . . that the cross has been widely embraced by”— or even applied to—“non-Christians as a secular symbol of death” or of sacrifice in military service. […] It is thus unsurprising that, as the government’s expert admits, “[o]ver the course of time, Mount Soledad and its cross became a generic Christian site.” The Latin cross can, as in Flanders fields, serve as a powerful symbol f death and memorialization, but it remains a sectarian, Christian symbol.

The court in fact asserts that:

In light of the uncontested history submitted by Jewish War Veterans, the few memorials cited by Linenthal provide less than a scintilla of evidence to support his conclusion that the Latin cross serves as a non-sectarian war memorial.

I’m wondering what Justice Kennedy will think of that, since in Buono (Mojave Desert Cross case) he stated:

But 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 marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.

In fact, the 9th Circuit here even took a direct shot at him on this issue:

Nonetheless, we have thoroughly considered Justice Kennedy’s opinion. As we have discussed, the record before us does not establish that Latin crosses have a well-established secular meaning as universal symbols of memorialization and remembrance.

The court further states:

The record contains not a single clear example of a memorial cross akin to the Mount Soledad Cross.

They are playing stupid here, because, as the Court notes elsewhere:

The centrality and prominence of the Cross in the Memorial dstinguishes the Memorial from other war memorials containing crosses. For example, the Argonne Cross and the Canadian Cross of Sacrifice at Arlington National Cemetery and the Irish Brigade Monument at Gettysburg are located among the many secular monuments in those memorials.

So, presumably their cop out is the use of “akin”, because there are plenty of crosses as memorials, just not one of the same prominence as the one at issue here. They seem to imply that the difference between the Soledad Memorial and these others is inclusion of the cross in a larger landscape, which is fine, but let’s be clear at least about what it is. What bothers me is they acknowledge these other crosses as Memorials (yea though part of a larger memorial) and still state unequivocably that “[t]here is simply “no evidence . . . that the cross has been widely embraced by”— or even applied to—“non-Christians as a secular symbol of death” or of sacrifice in military service.” You might not like it, but there is certainly evidence to support the view that there is such evidence, a position endorsed by Kennedy.

Nonetheless, I think what shocked me the most about the case isn’t as much the legal reasoning as just the outright imbecility of some of the statements therein. Two in particular stood out to me. Citing Friedman v. Bd. of County Comm’rs, the court noted that:

“[W]e are masters of the obvious, and we know that the crucifix is a Christian symbol.”

Um, yes. But, last time I checked there is not a 20 foot Jesus affixed to the 43 foot Memorial Cross. They do realize that there is a difference between a Cross and a Crucifix, don’t they?

More egregious to me was this one, wherein the Court makes the same mistake that many others make:

In contrast to this ample evidence of religious usage, the record of secular events at the Memorial is thin. The Association represented in its 1998 bid for the land sale that it had conducted annual memorial services at the site for forty-six years, but the government’s expert historian could point to evidence of only two Veterans day ceremonies—one in 1971 and one in 1973—that occurred prior to 1989.

Now, note what the Court stated about the Soledad Memorial genesis:

When the Cross was erected in 1954, it was dedicated “as a lasting memorial to the dead of the first and second World Wars and the Korean conflict.”

Imagine if I wrote the following:

The dirth of Easter Services on Christmas this Year is a sign that the Christian Churches have atrophied to near non-existence.

Presumably one of you would be kind enough to write a comment that went roughly like:

Hey Dumbass, Easter and Christmas are two different Holidays, honoring two distinct events. How about doing a little research?

The number of Veterans Day events honoring living veterans has absolutely nothing to do with a memorial set up to honor deceased veterans, except that they both deal with veterans. Veterans Day is for the living; Memorial Day commemorates U.S. soldiers who died while in the military service. It would be more instructive if we actually knew if there had been any Memorial Day events there. Alas, this ruling does not inform that inquiry. Now, the Memorial does have some Veterans Day events, so I guess the Memorial must also be to the living (contrary to the stated purpose at it’s dedication in the 50’s) but one wouldn’t really know that simply from the case itself.

Anyway, the Court concludes that:

Accordingly, after 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. This result does not mean that the Memorial could not be modified to pass constitutional muster nor does it mean that no cross can be part of this veterans’ memorial. We take no position on those issues.

I might be more willing to accept that reasoning had they actually done the analysis they claim here. There was a Government witness and Justice Kennedy who asserted that the Cross can be a secular symbol of sacrifice, and yet they stated that there was not a “scintilla” of evidence to support that proposition. What the hell is a scintilla if not an expert and your boss saying so? It kind of boggles the mind. When asserting there is insufficient secular usage of the Memorial, they cite to a holiday that is not analogous to the intent of the memorial itself. They discount the 60 plus years of its’ being a Memorial to Veterans, the assertion of the same by the US Congress, and other evidence to state that it has no long-standing history as a Memorial to veterans. In one part that I didn’t quote here they go off on a tangent about how the city of La Jolla is known for its history of racism. And so, the history of La Jolla discrimination in housing availability is germane, but not the rest of it.

And just how would the Memorial be altered to bring it into accord with their view of the establishment clause? We are left to wonder, as there is no guidance. Perhaps if we affix a 44 foot inflatable Spongebob balloon to the top and send the case back up it will survive.

What I find particularly ironic is that this took place outside San Diego. Anyone know where San Diego got it’s name?

It is named after the Franciscan mission that was situated there, named after Saint Didacus. Perhaps we ought to rename the city to avoid entanglement of religion and state. Might I suggest the name Norvturnerville. It has a ring to it, but it might not do very well in January.

Category: Politics