A federal case should not be based on somebody’s hurt “feelings,” according to a brief filed with the U.S. Supreme Court urging the justices to act in the dispute over the Mt. Soledad Memorial in San Diego, which features a cross.
The friend-of-the-court brief was filed by the Alliance Defense Fund on behalf of thousands of members of the United Retired Firefighters Association and the American Legion.
The case, brought in the 1980s by an atheist who claims to have been offended by the existence of the memorial’s symbol, has been elevated to the high court by the split decision of the often-overturned 9th U.S. Circuit Court of Appeals that the cross should be removed.
The ADF brief said those who claim to be offended are suffering no injury.
“Instead, their standing rests on subjective feelings of offense. In this case, the allegations of lead plaintiff, Mr. Steve Trunk, typify those of offended observers nationwide who recoil at any employment of religious symbolism by the state. Mr. Trunk’s declaration states, for example, that the cross located at the Mt. Soledad National Veterans Memorial causes him to subjectively ‘feel uncomfortable, offended, disrespected and like a second class citizen.'”
Both of the client organizations, representing retired New York City firefighter and military veterans, “wish to protect memorials to America’s fallen heroes and argue that a person or group merely offended by a cross included in such a memorial does not have legal standing to attack it in court.”
ADF senior counsel Joseph Infranco said public monuments “to honor those who gave their lives in service to our nation should not be torn apart based on the subjective ‘offense’ of a litigious few.”
“Allowing that to happen places the future of these beloved memorials into the hands of activists whose sole concern is furthering a divisive, political agenda, no matter the cost,” he said.
The brief states: “Offended observers have no such direct stake and the psychological harm to which they lay claim pales in comparison to that caused by the demolition of public memorials dedicated to those who gave their last full measure of devotion to our nation.”
For many years, the American Civil Liberties Union and others have sought to have the Mt. Soledad Veterans’ Memorial cross torn down on behalf of individuals and groups who claim to be offended by the memorial’s cross.
But just two years ago, the high court found that another veterans’ memorial, a cross standing in a remote region of California’s Mojave Desert, did not have to be removed.
The ruling then said, “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. … The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.”
The URFA represents some 16,000 retired New York City firefighters. The organization seeks to honor the sacrifices firefighters have made. It has a unique interest in protecting monuments like the National September 11 Memorial, which houses the World Trade Center cross. Last year, American Atheists filed suit to remove that cross, which could also be affected by the outcome of the Mt. Soledad case.
The American Legion Department of California cites 130,000 Legionnaires throughout the state as constituents. It works to defend veterans memorials there.
The case argues that the Constitution demands more for a litigation than the “subjective ‘offense’ of a litigious few.”
The brief points out that the Supreme Court itself previously rejected the “concept of offended observer standing.”
“This court should grant review to vindicate the principle espoused [previously] that psychic sting is not a cognizable injury in fact,” it said. “Offended observers who choose not to visit the environs of monuments containing religious symbols are, for example, no more victims of government oppression than pacifists who refuse to enter the grounds of a military base. Both groups disagree with government policies and manifest their displeasure by avoiding structures that bring those policies to life. Their political expression is clearly protected by the First Amendment, but any acts of self-deprivation involved are not attributable to the state,” the brief explains.
The Liberty Institute earlier reported it had filed the appeal with the Supreme Court.
A three-judge panel at the 9th Circuit had ordered the cross to be removed, saying the monument was unconstitutional.
Lawyers for the Veterans Memorial then asked the full court to either review or reverse that decision – a request the court denied.
“Although we are disappointed that the Ninth Circuit denied requests to have the full court rehear this case, we are encouraged that five of the judges agree with us and believe the cross should stay,” said Kelly Shackelford, attorney for the memorial, at that time.
Shackelford was referring to the 23-page 9th Circuit denial that concludes with a dissenting opinion stating, “Mt. Soledad is a memorial to the sacrifice made by many soldiers who have protected this country over the years, regardless of their religion.”
It continues, “And it is a promise to those current soldiers, a promise that we appreciate the sacrifice they are willing to make for our freedom and that, if they pay the ultimate price, we will remember them.
“The cross has stood at the entrance to this memorial for almost 100 years. It has taken on the symbolism of marking the entrance to a war memorial.
“We should leave it be.”
The first memorial cross was erected at Mt. Soledad in 1913.