Federal Judge reluctantly orders destruction of Mt Soledad Memorial

 
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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.

Further:

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. 

Posted in the burner | 41 comments
 
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Comments

If all this PC stuff doesn't get under control pretty soon the flag will be the next thing that will have to share its position in this country. The next thing you know every place that fly's the flag will look like the UN everyone wants to be seen.

The last I saw statistics on religion in the US roughly over 80% of the US population identified with Christianity. Why do we have to continuously accept the minority religions but they don't have to accept us. This country was founded on Christian principles. Proof of that is readily found in any documents written in support of our Constitution by the founding fathers. I'm a Vietnam Veteran and getting pretty damn tired of the minorities dictating how I can live in my own country. We allow anyone to worship any religion they wish including Atheism, Jewish, Islam, etc. but I can't openly be a Christian. Just look in any area of the US and you see churches of every denomination. I really don't care how they believe or don't believe. I should have the same right. If they fought for this country, let them establish their memorial. This political correctness has to stop.

Well said brother, welcome home, Quang Tri/DaNang '69-70, Navy Seabees

26 MILLION VETERANS IN THESE UNITED STATES, AND THEY WILL, NOT FOR WHAT REASON COME TOGETHER TO UPHOLD THIS KIND OF THING, FREEDOM IS ON THE DOWNFALL? HOW MANY HAVE DIED TO PRESERVE THIS FREEDOM? SAD DAY IS ALL I CAN SAY.

A PAST LEGION COMMANDER

We keep electing these people to the Congress and the House and untill we clean house and let them know how we feel this will get worse. Vote and voice your opinion that is all they understand.

It's not just Congress, it's the whole country. From the ACLU. MSM, the Democratic agenda . . . etc. PC doesn't mean anti religion, but it is beginning to. It has become anti Christian! If this was another symbol, rather than the Cross, it would not be an issue. All other religions seem to be able to take center stage to make their point, al long as they are not Christian. If this was the Star of David or a partial moon, there would be no discussion here. Look out, the next thing will be the removal of crosses in our National cemeteries!! Until we have a complete return to our Christian roots and Constitutional foundations, this crap is only going to get worth. You are absolutely correct, we need to start cleaning house in Washington, but I am afraid it is way too late for us Christians to be save from the lions of PC. Please, God Bless America, we are too stupid as a majority to save our selves. I hate to say I wasted nearly 30 years of my productive life supporting the US on active duty, to see it being destroyed by self serving socialist politicians,

In January 2011, the United States Court of Appeals for the Ninth Circuit ruled[46] the cross unconstitutional. Judge McKeown wrote for the court, "Overall, a reasonable observer viewing the Memorial would be confronted with an initial dedication for religious purposes, its long history of religious use, widespread public recognition of the Cross as a Christian symbol, and the history of religious discrimination in La Jolla." It was a unanimous decision

So where does the cross, christian or otherwise, violate the Constitution? All that document states concerning religion is that Congress shall pass no laws establishing a religion, or the free exercise of religion. So, by that statement, making the people take the cross down is preventing the free exercise of religious beliefs is it not. The ruling to take the cross down is unconstitutional in of itself. I don't believe anyone at La Jolla has prevented any other religion from erecting a symbol have they? If the majority of the individuals interred there are Christian, is this not an affront to their beliefs and those of their families?

Our Nation is being taken away from Americans and changing what it is to be an American and free. And why aren't the elected officials taking a stand for Vet's and not stabbing Vets in the back. Then lie again about the next cause for the next war. I agree with my brothers above.

The destruction of a civilization takes time. Slowly but surely the symbols, traditions and values that a specific society stands for ( in the case of the U.S.A and other "Western" societies a cross as a memorial for the dead is a venerable tradition) are challenged, subverted, erased and eventually replaced. The removal of a cross as a war memorial by groups who "feel" hurt or that their philosophy cannot accept the cross as a symbol of sacrifice , would like nothing more to dictate their worldview onto what was until very recently a majority belief in this country. Should the ruling stand, and Mt Soledad's memorial be destroyed, then I can see, over the horizon, the same foul logic used to remove such decorations as the Distinguished Flying Cross, and right up to the Distinguished Service Cross as they represent a cross which is, by extension, representative of Christianity ---- AND YOU AMERICANS CAN'T HAVE THAT. It's disgusting and I'm thoroughly outraged.

Hope all the judges of the ninth circuit enjoy living in a communist/socialist county that they have created. They will especially will like it when the peasants come to take their heads and the veterans will be around to protect them.

If the federal judge really cared about his boss (God) not the ninth circuit, he would rule that the issue does not belong in his jurisdiction. It is not, it is in God's jurisdiction and the in the people whom erected it. It cannot and I repeat, It cannot be removed on the whim of an atheist or other perverted idiot and it is about time we told them to shove it where the sun don't shine. Keep in mind, I have planted an atom bomb under the cross and put a pressure switch under the cross, let them try to remove it and it will blow them to kingdonm come and they will meet the one who authorized its implementation.

Well, that was a childish comment.

A Cross is a Memorial. It can be seen by most people as a symbol, which may have a different meaning to many, most people look at it as a war memorial for those that are remembered and gave their lives in the Military. There are those that look at a cross as a religious symbol that reminds them of their religious beliefs and the kindness and love that God has for all of us. Then there are those that don't have any religious beliefs and to them it is a just a symbol, but to them, as almost everyone, has a religious connotation. These symbols offend them and they blame the government. They can't attack Churches but would like to take all Religious References out of their sight. Because of our Constitution we do have our Religious Freedom as individuals, including business and corporations. But today with the Liberal Main Stream Media, the ACLU and PC (Political Correctness) we are losing our basic freedoms and business and corporations are caving in to this sickness. The founding fathers wrote the constitution and did not want our country to be run by a King or a Church, by understanding the problems with these types of governments through history. Thereby the Separation of Church and State, the Founding Fathers stated this in the Constitution so that it would not be forgotten. The Bill of Rights were written and became law so that they would be remembered and so that our God given rights that we were born with would not be taken away. Our country was started by men with moral backgrounds, men that cared about our country and "We the People". I have traveled across the country and as a veteran I have seen many crosses as symbols of victims that died in a war. Are those groups going to next ask that all the crosses in Arlington Cemetery in DC and every veterans cemetery in the country be destroyed or removed?

Why don't you and other groups get together and buy one square foot around each religious symbol from the US or State governments for a nominal fee of one dollar. It becomes private property. You maintain it . Problem solved.

Are all the crosses in Arlington next????????????

I find this attack on religion outrageous and without merit. These memorials and crosses exist all over this world. When any given religion attacks anothers symbology it is not in keeping with the tenants of said relgion. If these people find the monument disturbing i say "avert thy eye's". I am tired of these people ttcks.

In god we trust. We hold these truths to be self evident that we are endowed by our creator... Let's stop all this battling. I see no good reason to remove this symbol. Any more that the people of Brazil would remove "Christ the Reedemer" from their mountaintop..

The merits of these attacks needs to be examined, what good comes of hiding God from our sight.

Again if this offends you, close your eye's and look not upon it again... I wonder if it were a Star of David would the Jewish comunity or others attack it?

Live and let live... Focus on what's important, not this acrimony and hatred for others religion...

our country is suppose to be a democracy, so why can't communities vote on issues rather than let a "judge" decide what we do or do not want. I am so sick of a few controlling the many - stand up people! who cares, what difference does it make....... (heard that somewhere) it's a symbol, some see it as a religious reference, some see it as military, some see it as oppression and some as art. put it on a ballot and vote (go or stay ....... majority wins - end of story)

I feel sorry for the Judge on having to rule on removing the cross. I applaud his reluctance. The people who are demanding removal of the cross should be more concerned about the possibility of Muslim training camps in the United States; 35 or maybe even 36 or more by now. Why don't you look into something that may be a real threat to this country.

If what I read above about the city of San Diego is true there may still be another solution. The
city in hopes of not having to remove the cross, gave the memorial to the government. Since
that did not solve the problem, the government could give the memorial back to San Diego
City who could then sell it to a private foundation. This is exactly what happened in Riverside
Ca. There has been a cross on top of Mt. Rubidoux for years. The city was being forced to take
it down by a group who say they were offended by the cross. The city of Riverside however
decided to sell the plot of ground on Mt Rubidoux, which the cross stands on, to private group.
This eliminated the problem for separation of church and state. I'm sure you could find a private group of veterans that would be ready and available to take on the responsibility of taking care
of this beautiful memorial. Just a thought.
memorial.

I agree with you Chuck - selling the land to a private non-profit of Vets is the answer! I hope someone in the San Diego area will pursue this idea.

Chuck &Melissa I have to say that is the best yet , i'am a 100% dissabled VIETNAM VET , 1969 & 1970
an Bruce U REALLY DO HAVE A greay soloution (s/p), that don't work , WELL , BET I CAN GET ENOUGH DONATIONS TO PUT IT RIGHT HERE 680 MILES OR SO NORTH OF S.D. BE DAMN GLAD TO HAVE IT , ( PROUD TO HAVE IT )

If the crux of the problem is certain factions think the Government is making a law "respecting the establishment of religion", whatever the hell that means, then if the city of San Diego sold the land to the U.S. Government to get out of hot water then see if the U.S. Government would sell enough property for the Memorial to an individual citizen or a private group - then it would be PRIVATE PROPERTY !

I am an athiest but not an @$$. Why do these jerks alway try and cause trouble for well meaning people? There is no ill intent or effect from having a cross displayed. Go ahead and put up a Star of David if you like but please don't be enemies of religion just because we see things differently. Our society has its base in Christian values and traditions and has benefitted greatly from that fact. The crazy libs keep trying to rewrite history and deny what anyone of any scholarship knows to be true of our history. I do believe Christians have been singled out for these abuses and THAT is just plain wrong. We can and should disagree with dignity and respect not petty jabs at each other. America is supposed to be free to all religions and ideas not everyone BUT Christians. My fellow atheists (and I use "fellow" loosely) please show some class and some respect for other people or it will come back to haunt us all. The Consevative Atheist

This ruling was expected and another (and hopefully the final) appeal is being made. Here is a link to the Mt Soledad Veterans Memorial website which explains why this ruling is a positive.

triple w soledadmemorial DOT com

BTW, the cross is not to be seen as (and is not used as) a Christian cross, but rather to show sacrifices made by our Armed Forces. There are over 3,300 individual plaques honoring veterans at MSVM, and each can have their own religious symbol engraved, or no religious symbol, if they so desire. To see how these plaques appear, at the website link to "Veteran Plaques", then "Plaque Locator", and check for a specific veteran and finally click on "Image" to see the plaque. Some of the noteworthy plaques include Gen George Patton USA, Fleet Admiral Chester Nimitz USN, MajGen Patrick Brady USA MOH VN Dustoff Pilot, AOC John Finn, USN WWII MOH Dec 7 1941, BGen Earl VanInwegen USAF VN who Gen Stormin' Norman Schwartzkopf said performed the bravest act he had ever seen when he went into enemy fire to rescue wounded when no other pilots would do it, Spec Lori Piestewa USA OIF the first Native American woman KIA in Iraq.

Well, after 60 years down comes the cross. After 60 years. Hum. This just goes to show how far our country has deteriorated for God in the last 60 years. As I have always said, even while fighting a war, they can take all the crosses down, take all prayer out of the schools, let false Gods enter into our society but they will never be able to take the really living God out of our hearts and lives no matter how hard they try. God Bless America.

I am a Satanist and, along with about 40 other Satanists who served in the Gulf war from my state, have decided to put up a Gulf War memorial on publically funded, federal land. We plan on placing a 60 foot tall upside down cross, the symbol of our Lord Satan, on top of the highest hill in the park. That way, it can be seen for miles around as a shining symbol of our faith in the prince of darkness. The best part is, since this is a park funded by tax payer dollars, our Gulf war memorial to Satanists will recieve free maintanence and preservation for decade upon decade! Thank you for helping to pay for our memorial's preservation and upkeep, through your taxes, Christians!

WHETHER I AGREE WITH IT OR NOT, THAT IS YOUR RIGHT UNDER THE U.S. CONSTITUTION.

You son of a bitch! You ought to burn in hell!

Dom Price - It's so sad Dom that you have so much hatred in your heart. It is easy to see it in your words. The every things that you write are what made this county so great over the past 200 years. The ideals that you promote are exactly what is making us the laughing stock of the present world. What I see is the present rewriting of history books with political correctness, an anti-Christian stance that our government has taken, and the punishment and hatred against those that actually produce in our society vice continually coddling those that continually just take. Only a matter of time before our nation will be a second rate country in just another generation. The fact that we just passed a bill in Congress to lower the COLA for those that gave all for our country (military), but leave unemployment, food stamps, and welfare untouched should tell you exactly that we are all soon going to suffer unless we promptly change our course of direction and get back to morality vice individuality!

31 year vet - Apparently, you havent been paying attention.

September 19, 2013
WASHINGTON — House Republicans pushed through a bill on Thursday that slashes billions of dollars from the food stamp program, over the objections of Democrats and a veto threat from President Obama.

As far as the retirement and COLA being lowered, a 1% cut in military retirement? Big deal. Give me a break. Let's say you get $10000 a year in retirement. That means 1% of 10000 is 100. Divide that by 12 months and that is 8.3. Divide that by 4 weeks in a month and that is $2.08 a week reduction in benefits.
You right wingers were all about closing the government down and not paying federal employees because they get too many benefits. Well, that's ok until the cuts start to effect you, isn't it? Guess what? The military are federal employees, and it looks like it's time their benefits got cut too. And oh, by the way, my wife and I are both Army vets.
You do 20 years in the military and retire at what? An average age of 45? Then they get retirement for the next 30 years while they have a second job or go right back to work for the government. And that doesn't even include all those who claim disability for "non-combat" injuries while they were in. Sorry, but I just don't feel sorry for you.
The budget bill that was passed was clearly supported by Republicans, although some voted against it. All I hear on here from the right wingers is "cut this" or "cut that". Or during the shutdown, you all wanted to "keep it shut" or "fire federal employees" or "cut their benefits". Now, when a benefit that is dear to YOU is going to take a 1% cut, suddenly you are pissed? It's so hypocritical. Now, Obama has two choices. He can veto the bill and shut down the government again, or pass it and keep the government open. So, he is doing the right thing by signing this bill, that has bi-partisan support, into law. How is it somehow ok to "take" from those that honorably serve their country in federal service, but not ok to "take" from those who honorably serve their country in the military (federal service)?

I say lets put the marines including myself there and shoot the bastards who try there bullshit. this country is going to hell quick because the weenies who is in charge. they have no military experience at all. they would hide if called upon.

The Truth is: America's president, aided by his social/commie hacks and czars, is dragging America toward the cliffs of communism. Soledad is just one more small victory for the world communists and they celebrate every time. The communists in America have subdued their opposition to the point of hiding the fact from the "silent majority". How many conservative organizations and politicians bring these facts into the bright light of the TRUTH? NONE! Where is Fox News, the NRA, the Republican Party, the Heritage Foundation and countless others? This tragedy sickens all True American Patriots. There isn't much time left to save America and I don't know what to do about it; maybe someone smarter than I does. GOD BLESS AMERICA!

If you want to shove your religious views down other people's throats, join the Taliban.

70 years ago a country took action on people who were doing their best to take action against
their form of goverment. Lets hope we dont go down the same road. We may have to decrease the amount of monuments in order to have private groups sustain them or change the actions of our goverment. Something like that will never happen as our elected officials care only about themselves.

IF THEY HAVE TO TAKE IT DOWN THEY SHOULD LAY IT DOWN ON THE MOUNTAIN SITE.

I wonder how a group - whose religion comprises about one percent of the overall U.S. population - has managed to gain so much influence over the way we live our daily lives and the freedoms we (used to) enjoy. This same group also wields an insanely disproportionate amount of influence over our banking system and Congress (through AIPAC); not to mention the mass media they control and use to indoctrinate our youth with the toxic filth that convolutes the sense of values being formed in their impressionable young minds!

I wonder which will come first; Revolutionary War II or Civil War II?

What's next are we going to have to remove all the crosses from the national cemetery's!!!

Some of you people need to get a life first of all, stop the hate and learn to love thy neighbor! The fact is all minorities this county have had the christian faith use the cross as a symbol of morality to beat down the non-white, non-christian and immigrant to control them. Read your history with open eyes.

If this Cross must be removed because it is a Christian sign then why is it possible that the Supreme Court building and our House and Senate buildings all have statues and writing referring to Christian writing and beliefs. Would a normal person say that if the Cross is a violation of our constitution then all other Christian statues and /or writings on any federal building MUST be removed?

That is not what the Constitution says. It says that the state will not establish a religion--meaning an official religion. It was passed in answer to England's then stance that there was an official, state religion and all other religions were banned. The amendment was never intended to be a block to the free exercise of religion. But that is what the liberal courts of today has turned it and many other amendments into. It reflects what has happened to "free speech." Since when does "free speech" equal the right to do whatever I want and call it "speech"?

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News from the World of Military and Veterans Issues. Iraq and A-Stan in parenthesis reflects that the author is currently deployed to that theater.