Federal Judge reluctantly orders destruction of Mt Soledad Memorial
First the background from the Wall Street Journal:
For nearly 60 years, a 29-foot cross atop the Mt. Soledad Veteran’s Memorial has stood as one of San Diego’s most recognizable landmarks.
But if an order made Thursday by San Diego U.S. District Judge Larry Burns stands, the cross will soon have to come down.
The ruling is the latest, and certainly not the last, bit of legal wrangling over the cross, which was erected in 1954.
In 2005, after a state judge ordered the cross taken down, the city of San Diego transferred the land to the U.S. government, in hopes of preserving the cross.
But the move just generated more litigation. In 2006, local residents and the Jewish War Veterans of the United States of America sued, arguing the cross violated the First Amendment’s Establishment Clause, which bars the government from making any law “respecting an establishment of religion.”
This case has gone through innumerable court challenges and appeals, and this is just the latest. But I see a lot of anger focused on the Judge in this case, and I think looking at his decision might sway a few people. Yes, he did rule it must come down, but if there is a more reluctant opinion issued in a case, I don't know what it is. Judge Burns went to great lengths to say he thought the memorial should stay, but his hands were tied by previous rulings by the Ninth Circuit.
Take for instance how he starts his ruling:
This court previously held (and continues to believe) that permitting a historic, now 59 year-old cross to remain as part of a federal war memorial atop Mount Soledad cannot be reasonably viewed as our government's attempt to establish or to promote religion. But a panel of the Ninth Circuit Court of Appeals has ruled otherwise.
For those not versed in "Legalease" he's basically saying that he thinks the underlying decision is wrong, but since the Ninth Circuit is essentially his "boss" there's not much he can do about it.
The Ninth Circuit did not explicitly direct this court to order removal of the cross, but instead questioned whether the Memorial might be modified in some way, and remanded the case "for further proceedings consistent with this opinion."
Nonetheless, other deliberate language in the opinion makes it clear that removal of the large, historic cross is the only remedy that the Ninth Circuit conceives will cure the constitutional violation...In spite of many secular changes to the Memorial, its long sectarian history, as found by the Ninth Circuit, effectively prevents the government from purging the religious connotation in any other way.
He's essentially looking for anyway to preserve this monument, but believes that the Court has given him no possible way to do that:
Plaintiffs have also requested that the cross be removed, and no party has pointed to a reasonable alternative. Some Defendants suggested the addition of signage offering explanations of the memorial’s purpose. But the panel’s decision forecloses this as a solution.
The judge seems to hold out hope though that the Supreme Court will at long last weigh in and resolve this:
Additionally, in his concurrence to the denial of certiorari in this case, Justice Alito pointed out the absence of a final judgment prevented the Court from considering the constitutionality of the Memorial, which is “a question of substantial importance." It is particularly appropriate for the Court to issue a decision that advances this case to finality so that this question of “substantial importance” can be clarified, perhaps by the U.S. Supreme Court.
So, hopefully Judge Burns is right, and the Supreme Court will weigh in on this. And if they overturn the Ninth Circuit, I doubt Judge Burns would be unhappy.