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Americans United for Separation of Church & State
Protecting Your Right to Believe... Or Not
Mount Soledad Cross Found Unconstitutional, Again
The 9th Circuit Court unanimously found that the Mount Soledad Cross, ostensibly a "war memorial," serves the primary purpose of promoting the Christian religion and that its presence on public land is a violation of the separation of church and state.
This battle has been in the courts since 1989 and may yet find its way to the United States Supreme Court. The original case was brought by the ACLU and both the District and 9th Circuit Courts agreed that the religious symbol on San Diego city property violated the California Constitution and must be removed.
City officials tried to transfer the land to a private owner, but the courts found that this act to preserve the cross, and to circumvent the courts, itself constituted a government favoritism for a specific religious belief and was a violation of the establishment clause.
In 2006 Congressmen Duncan Hunter and Randy "Duke" Cunningham introduced a rider into the omnibus spending bill to transfer the land and the cross to the Pentagon as a war memorial. This forced the case back to square one with the Federal Government now as the defendant.
The lower court this time found in favor of the government ruling that the cross was not a primarily religious symbol. This should come as quite a shock to practicing Christians. However the 9th Circuit Court reversed the lower court citing that the cross dominates the display at the so called war memorial and that the site was not configured as a war memorial until years after legal challenges to the cross had begun.
To quote from Judge McKeown's ruling, "...in adopting the First Amendment, the Founders were prescient in recognizing that, without eschewing religion, neither can the government be seen as favoring one religion over another. The balance is subtle but fundamental to our freedom of religion."
If the case moves to the Supreme Court, the ruling has at least an even chance of being reversed by the activist Robert's court. Last year they ruled 5-4 that the Mojave Cross, also a "memorial" on Federal land, could remain.