COOPER: ACLU and 9th Circuit against Christianity

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By Horace Cooper

It is fitting that during this season we take time to acknowledge our nation's religious heritage. In the Mayflower Compact - the agreement made by the earliest American settlers - the preamble explains that their mission included the "propagating of Christian religion to such people as yet live in darkness and miserable ignorance of the true knowledge and worship of God."

Even Christopher Columbus is recorded as acknowledging that his ambitious plan to discover new worlds was in part a religious endeavor. "It is hoped that by God's assistance, some of the continents in the Ocean will be discovered … for the Glory of God," he said. Additionally, one of the first acts of the Jamestown landing party in 1620 was the erection of a cross. This event was movingly re-enacted in Jamestown last year as part of the Jamestown Quadricentennial: A Celebration of Our Providential History. Nearly 4,000 re-enactors came from all walks of life and ethnicities to memorialize and honor our nation's Christian heritage. Unfortunately, for some this heritage is merely a worrisome nuisance, particularly when it involves the cross. Despite the sacrifice and bravery and overt religious motivations of so many of the earliest immigrants to our land, groups like the American Civil Liberties Union continue to pursue their efforts to suppress that memory. Consider the controversy over the Mount Soledad National Veterans Memorial. For the past 18 years, the ACLU has fought to have the 40-foot cross at the Mount Soledad National Veterans Memorial removed.

Mount Soledad first was used as a memorial park in 1914, yet there has been a cross on the property in one form or another since 1913. During World War II, it became a part of the military's early warning defense system, and in 1954 a 29-foot Latin cross was erected to honor Korean War Veterans. In 1989, the first lawsuit was filed against the City of San Diego claiming the cross violated both the U.S. Constitution and the California Constitution. Finding that the cross was in a public park maintained at taxpayer expense, federal Judge Gordon Thompson ruled that the cross was unconstitutional under the California Constitution.

San Diego, ironically named after a Catholic saint, sought to resolve the matter by transferring the property to a private organization by a public referendum. This referendum succeeded in 1992. Around the same time, the city appealed the district court ruling. Not unexpectedly, the 9th Circuit Court of Appeals upheld the district court injunction, holding that the designation of the cross as a war memorial was not enough to meet the requirements of the California Constitution. Even after being granted the right to reargue the case en banc - that is, before the entire circuit - San Diego lost.

At this point the city went forward with its plans to formally transfer the property using the authority gained from the city-passed referendum. San Diego sold roughly 224 square feet of land at the foot of the cross to the Mount Soledad Association, a non-profit organization committed to maintaining the cross and the memorial associated with it.

The ACLU went back to court and was able to convince Judge Thompson to rule in 1997 that the transfer violated the state's constitution. In his order, Judge Thompson gave the city 30 days to take the cross down. After several more attempts to protect the memorial, the city succeeded in getting the property transferred to the federal government in 2006.

The monument's supporters assumed that any associated litigation would end. But they were mistaken. This was one windmill that no one could stop the ACLU from tilting at. It is noteworthy that the prospects in federal court are much better this time since the entire matter will be decided based on the U.S. Constitution instead of the more restrictive California Constitution. Under the U.S. Constitution, a memorial which is open to the public regardless of their beliefs does not violate the constitutional right to religious liberty guaranteed by the First Amendment merely because its maintenance and upkeep necessitate taxpayer funds. Instead, it reinforces religious freedom and acknowledges our religious heritage.

In a rare win, a new federal district judge, Larry Burns, ruled this summer that the memorial was indeed constitutional. Unfortunately, the ACLU is appealing that decision. And ominously that means the same 9th Circuit - arguably the most liberal circuit in the United States - will be considering this case again. But this time the law and history are on the side of Mount Soledad. Many experts predict no matter what the ruling of the 9th Circuit, this case is headed to the Supreme Court. In the midst of our shopping and festivities, let's hope for our nation's sake that our courts don't forget the reason for the season.

Horace Cooper is a senior fellow with the American Civil Rights Union.