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Judge rules Mt. Soledad cross constitutional

A judge has concluded that a cross located at the Mt. Soledad Veterans Memorial near San Diego is constitutional and can remain where it is on federal property, but the 20-year-old battle over the symbol – one of thousands at the memorial – apparently still is not over.

Mt. Soledad cross near San Diego

“When the cross is considered in the context of the larger memorial and especially the numerous other secular elements, the primary effect is patriotic and nationalistic, not religious,” wrote U.S. District Judge Larry Alan Burns.

“The Court finds the memorial at Mt. Soledad, including its Latin cross, communicates the primarily non-religious messages of military service, death and sacrifice,” he said.

Richard Thompson, chief of the Thomas More Law Center, a nonprofit legal group active in the case, called it a “wonderful victory” for the families of veterans memorialized under the cross and “for all Americans who care about our young men and women who have sacrificed their lives in defense of our country.”

“Sadly, I fully expect the ACLU attorneys to appeal this decision to the 9th Circuit Court of Appeals. So this fight is not over,” he said.

The center advocated for the cross remaining in place on behalf of the families Majors Michael D. Martino and Gerald
Bloomfield III
, who were killed in combat in Iraq in 2005 when their attack helicopter was shot down by a surface-to-air missile.

The case to remove the cross originally was brought by an atheist, Phillip Paulsen, who died in 2006. The dispute dates back to 1989, and at one point the arguments included an order for San Diego to take the cross down. But in 1998 the city sold the property to the Mt. Soledad War Memorial Association, a move that again was challenged in court. The sale originally was upheld but later ruled unconstitutional by the full panel of the 9th Circuit Court of Appeals in San Francisco and remanded back to district court to work out a remedy.

Then Proposition A, passed by 76 percent of the voters in July 2005, called for the city to donate the cross to the federal government as the centerpiece of the veterans memorial. Finally, Congress stepped and ordered the ownership of the land transferred to the federal government, a plan signed into law last year by President Bush.

As WND has reported, the cross was erected in 1954 and now honors veterans, including those of World Wars I and II and the Korean War.

The judge said the cross has been there for 54 years and has been used “for religious and non-religious events, including Easter sunrise services (some of which have been broadcast to troops overseas), veterans’ reunions, memorial services, weddings, and family gatherings.”

He added, “There is no history of discrimination between religious and nonreligious gropus in the issuance of municipal permits to use the site.”

Further, “The cross on Mt. Soledad is, as Congress accurately described it, ‘fully integrated’ as the centerpiece of a ‘multi-faceted’ veterans’ memorial ‘that is replete with secular symbols,'” the judge said. “In fact, in terms of the number of elements the memorial comprises, secular symbols predominate with over 2,000 individual memorial plaques, 23 military bollards, numerous inscribed paving stones, a tall flagpole and large American flag, and a bronze plaque commemorating the dedication of the memorial in 1954. And except for the cross, there are no other religious elements such as altars, statues, religious texts, or a chapel,” the judge said.

“The physical setting of the memorial, moreover, neither compels nor encourages religious devotion. For one thing, physical access to the cross is blocked by an iron fence. Also, there are no benches immediately adjacent to and facing the cross, nor any other fixtures or devotional trappings inviting veneration of the cross,” he continued. “Finally, the location of the memorial makes it an unlikely venue for government indoctrination. Located away from the hub of downtown and the seat of government, Mt. Soledad park is more a destination than a way station.”

The original dispute was voided by the transfer of ownership to the federal government. Burns’ decision comes in a new round of legal actions launched against the U.S. government after that transfer.

In a letter to the private association that runs the memorial, President Bush said, “Mt. Soledad becomes a place to reflect on our past, be inspired by true patriots, and offer war veterans our heartfelt gratitude for the freedom we all enjoy today.”

Charles LiMandri, the West Coast director for the Thomas More Law Center, said residents of San Diego “wanted and deserve” this result.

Opponents, he said, “are not going to be able to take that cross down, and they should just deal with it.”

Rees Lloyd, a longtime California civil rights attorney and director of the Defense of Veterans Memorials Project of The American Legion Department of California, said he expected the issue to end up before the U.S. Supreme Court.

LiMandri said, “We are confident that when this case reaches the Supreme Court, justice will finally prevail and put an end to this fanatical litigation of atheists and others backed by the ACLU.”

Thomas Bock of Colorado, the past national commander of the American Legion, said the victory “is great news not only for veterans but for all freedom loving Americans. It has been a long battle, and may not be completely over, but when good people take on a good cause they will eventually succeed over evil.”

Al Lennox, commander of the 130,000-member American Legion Department of California, vowed to “continue to stand, as long as it takes, with our allies in the Thomas More Law Center, and the Alliance Defense Fund, in the legal fight to protect Mt. Soledad National Veterans Memorial, and all other veterans memorials, from desecration by the abusive legal assaults of the ACLU and others who have no respect for veterans or our American heritage.”

Among other groups who have been active in the case on behalf of the memorial are the Pacific Justice Institute and the American Center for Law and Justice.