The U.S. Supreme Court is being asked to consider whether or not simply being “offended” by a religious symbol in a public place violates the U.S. Constitution.
Legal defenders of the cross at the Mt. Soledad Veterans Memorial near San Diego, which has been in litigation for 25 years, are citing the high court’s recent decision that prayer is allowed at municipal or other government meetings.
They want Supreme Court intervention in the case following a district court’s order that the cross be torn down. The order was stayed, pending decisions from higher courts.
A cross has been at the La Jolla, California, site since 1913.
A friend-of-the-court brief in the case has been filed by the United States Justice Foundation, Joyce Meyer Ministries, Public Advocate of the United States, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Conservative Legal Defense and Education Fund and Policy Analysis Center.
The groups are represented by Michael Connelly of the USJF and Herbert Titus, William J. Olson, John S. Miles, Jeremiah Morgan and Robert Olson of William J. Olson P.C.
The brief cites the Town of Greece v. Galloway decision last month in which the justices cited a 41-year-old precedent, Marsh v. Chambers, affirming legislative prayer under the Establishment Clause.
“In Town of Greece, the court recognized that the Establishment Clause drew a jurisdictional line between matters belonging to the state and matters belonging to the church, ruling that so long as prayer addresses the corporate duties and needs of civil government, not the individual duties and needs of people, then prayer – even sectarian prayer – is constitutionally permissible,” the new brief explains. “Second, in Town of Greece, the court recognized that even where prayer is permissible, the Establishment Clause only prohibits the civil government from coercing the people to participate in a religious exercise, but not from merely offending some individuals.”
WND has reported as the Mt. Soledad cross case has gone through district court, appellate courts and even the U.S. Supreme Court.
The arguments for its removal have been based on somebody’s hurt “feelings,” according to attorneys with the Alliance Defending Freedom, which previously filed a brief on behalf of thousands of members of the United Retired Firefighters Association and the American Legion.
The case was brought in 1989 by an atheist who claimed to have been offended by the memorial’s symbol.
But the ADF brief at that time 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,’” the argument said.
That brief stated: “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 it.
It was only months ago that a federal judge in San Diego, reviewing the case once again, ordered the cross removed over its unconstitutionality.
But that was before the Greece decision, and now the new legal argument cites that case.
The new brief explained that the Greece decision upheld the constitutionality of a city council opening its meetings with prayer. The decision reaffirmed its 41-year-old decision in Marsh v. Chambers that found “no First Amendment violation in the Nebraska Legislature’s practice of opening its sessions with a prayer delivered by a chaplain paid from state funds.”
“But the court did much more than that,” the argument explained. “In addition to reaffirming Marsh, it elevated Marsh to a new status. Long considered to be an exception to this court’s Establishment Clause jurisprudence, Marsh – as re-articulated and explained in Town of Greece – has now become the rule.
“Indeed, on close analysis, Town of Greece marks a seismic shift in this court’s Establishment Clause jurisprudence.”
Previously, courts had claimed a public display was unconstitutional if it was government sponsored and sent “a message ‘to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members.’”
The high court’s new standard, however, says that “offense” does not equal “unconstitutional.”
“In their declarations in the trial court, respondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions,” the high court said in its Greece ruling.
The new brief argued: “The court found no violation of the Establishment Clause, so long as the prayer addressed matters of state, even though the content of the prayer was sectarian. … Only if the content spilled over into such topics as ‘damnation,’ ‘conversion,’ or other topics related to individual proselytizing, would the practice cross the jurisdictional line between the affairs of the church and the affairs of the state.
“There is no doubt that the Ninth Circuit panel [in the Mt. Soledad case] is in direct conflict with these Establishment Clause principles endorsed in Town of Greece,” the legal team argued.
“Accordingly to the principles set forth in Town of Greece, the Mt. Soledad War Memorial Cross does not violate the Establishment Clause,” the brief said.