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Religious Cleansing in the USA: Federal Judge Orders Mt. Soledad War Memorial Cross Be Torn Down

By Deacon Keith Fournier
December 15th, 2013
Catholic Online (www.catholic.org)

A Federal District Court Judge named Larry Burns has ruled that the famous War Memorial, the Soledad Cross, must be torn down within 90 days. Fortunately, he also ruled that his order would be stayed pending appeal. This case must be appealed. The effort to scrub the public square of religious expression and symbols is a threat to religious freedom, runs contrary to our founding documents, and is unfaithful to our history as a free people. It also represents an incorrect application of the Establishment Clause, found in the First Amendment to the United States Constitution. 

SAN DIEGO, CA (Catholic Online) - A Federal District Court Judge named Larry Burns has ruled that the famous War Memorial, the Soledad Cross, must be torn down within 90 days. Fortunately, he also ruled that his order would be stayed pending appeal. This case must be appealed.

This case has been pending for years. It has come to stand as a symbol to many of the growing hostility toward religious symbols in the United States of America. The case ended up in front of Judge Larry Burns after the US Supreme Court refused to hear an Appeal from the 9th Circuit Court of Appeals.

On Monday January 4, 2011, a three judge panel of the United States 9th Circuit Court of Appeals had ruled that the cross be removed in what has been popularly called the "Mount Soledad Cross Case", Trunk v. City of San Diego, Case No. 08-56415. In effect, they held that because the Cross was a Christian Symbol it must be removed from a war memorial. How arrogant!

I know that some who read my assessment will disagree with me.  However, I will not nuance the anti-Christian bigotry revealed in the opinion of those three unelected black robed Federal Judges. They actually ruled that the Mount Soledad cross, which has stood on Mount Soledad since 1913, had somehow become a violation of the Establishment Clause of the First Amendment to the United States Constitution, simply because they said it had. 

All who are concerned about the growing hostility toward religious speech and expression in the United States have watched this case with great interest.  I make my assessment as a constitutional lawyer who has long questioned the current establishment clause law in our Nation.

In 1992 following the incomprehensible Supreme Court opinion in Lee v Weisman, while still serving as the Executive Director of the American Center for Law and Justice, a public interest law firm, I wrote a law review article entitled "In the Wake of Weisman: The Lemon Test is Still a lemon but the Psycho-coercion Test is more bitter Still".

In that article, after tracing the history of the interpretation of the Establishment clause of the First Amendment to the US Constitution and the developments of the last few decades, I predicted the insanity that would follow from the efforts of the Supreme Court to apply the so called "Lemon Rule" (named after the Courts 1971 opinion in Lemon v Kurtzman) and it's ever expanding interpretations and permutations.

That is precisely what has occurred once again. District Court Judge Larry Burns even acknowledged that he did not believe the Cross represented a governmental effort to promote religion. However, because the 9th Circuit Court Judges did, he ordered the Cross removed.  We have experienced a judicial ping pong game of incomprehensible opinions requiring a showing that religious symbols have a secular purpose - as though religion and the common good are mutually exclusive!

Let me demonstrate the level of hostility toward religion and religious symbols by recalling the 9th Circuit Court's own words. The Court actually took judicial notice that "After the Cross's dedication in 1954" there were "Easter services at the Memorial annually until at least 2000, and other religious ceremonies have been held there since. The annual Easter services included readings from the Bible, a Christian prayer and benediction, and songs such as "Jesus Christ is Risen Today" and "All Hail the Power of Jesus' Name."  That was seen as a bad thing?

They then decried the fact that, The Cross's importance as a religious symbol has been a rallying cry for many involved in the litigation surrounding the Memorial. LiMandri (a Catholic lawyer with the Thomas More Law Center seeking to preserve the cross) and the Thomas More Law Center, were integral in devising the plan to designate the land as a national veterans' memorial."

They critically pointed out that the Thomas More Law Center had publicly characterized the campaign to save the Cross in religious terms-for example, as a "spiritual battle. LiMandri declared that "Christ won the war on Calvary. These are just kind of mop-up battles . . . . LiMandri also participated in a fifty-four day prayer movement in front of the Cross that opened with the singing of "Immaculate Mary," and the prayer of twenty mysteries of the rosary.

Other Christian advocacy groups like the American Family Association, the American Center for Law & Justice, and Fidelis launched national petition campaigns for the Cross; an intercessory prayer movement was held by the Christian Defense Counsel outside the White House.


That 9th Circuit opinion was one more example of the growing governmental hostility toward religious faith, religious symbols, and, in particular, Christian faith and Christian symbols, in the public square. Who are those Judges to decide whether we can have memorials which also have religious symbols?

The effort to scrub the public square of religious expression and symbols is a threat to religious freedom, runs contrary to our founding documents, and is unfaithful to our history as a free people. It also represents an incorrect application of the Establishment Clause, found in the First Amendment to the United States Constitution. 

That 2011 opinion also demonstrated that the 2005 Supreme Court decision of Van Orden v. Perry, a "ten commandments" case, has made the illogic of Establishment Clause Jurisprudence even more pronounced in the United States. 

Even the convoluted trail left by the Lemon case and its progeny can now be abandoned by a Court, under the ruse of an "exception" to the Lemon analysis, only to be replaced by Judicial whimsy. In other words, unelected Federal Judges now determine whether we can express ourselves as a people who have a religious heritage. 

Federal Judges now make up their own rules by which they decide, on their own, whether a religious symbol, especially a Christian religious symbol, will be allowed to stand on public land or in a public building. There is not even a pretense that the actual words of the Establishment Clause have any effect in this new world of the judicial oligarchy.

That 224 page opinion rendered by the 9th Circuit in the Mt Soledad case back in 2011 is one of many examples of why it is absolutely essential that we reclaim the "Separation of Powers" doctrine and rein in Federal Judges and Courts. The recent decision of the lower Federal Court only makes it all more urgent. Are we going to begin tearing down other symbols of our history because they have religious symbols within them? 

The Establishment Clause of the First Amendment to the Bill of Rights is best understood as an anti-establishment clause. It was intended to prohibit the "establishment" of one particular religion - in the sense of a Federal or State sponsored Church which mandated adherence from unwilling citizens. The American founders fled coercive approaches to religion which compelled adherence to a particular sect. Yet, they were not anti-religious.

They were MOST assuredly NOT against religious symbols or religious expression. Our history is filled with them. Or, more accurately, it once was. Religious symbols are no longer seen as a wonderful sign of the history of the West and the American founding by the new Judicial Oligarchs.

Rather they are seen as a threat to the increasingly hostile secularist order. When they are allowed they must be demonstrated to have been eviscerated of any religious meaning and somehow thereby rendered "secular" and acceptable.

This 9th Circuit Court opinion showed hostility toward the Cross: [C]onsidering the entire context of the Memorial, the Memorial today remains a predominantly religious symbol. The history and absolute dominance of the Cross are not mitigated by the belated efforts to add less significant secular elements to the Memorial.

The fact that the Memorial also commemorates the war dead and serves as a site for secular ceremonies honoring veterans cannot overcome the effect of its decades-long religious history...The Memorial's relatively short history of secular usage does not predominate over its religious functions so as to eliminate the message of endorsement that the Cross conveys."

Those Judges were particularly offended by the size of the cross noting (W)e cannot overlook the fact that the Cross is forty-three feet tall. It physically dominates the Memorial, towering over the secular symbols placed beneath it, and is so large and placed in such a prominent location that it can be seen from miles away.

Their disjointed legal opinion finally concluded, [A]fter 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.

Now, Judge Burns has followed the directives of other Judicial Oligarchs and ordered that a beloved part of our history, a Cross which has long honored the war dead, be torn down. Charles LiMandri, a courageous Catholic Lawyer who represents the Mount Soledad Memorial Association, said he was going to Appeal.

Counselor, let me know of you need any help.

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