Archive for the ‘Mt. Soledad cross’ Category

Free. Free. No, not yet free.

Wednesday, July 4th, 2012

On this day, we celebrate our 236th anniversary of our independence and the dream of freedom in America. That dream is yet to be realized by millions of Americans.

Discrimination of all stripes, including the lack of marriage equality in most states. Sex trade. And the horrendous effects of money on political power, particularly post Citizens United.

Today, tho, I want to put the spotlight on the lack religious freedom due to government sponsorship of religion. The emphasis here is on federal sponsorships, altho state sponsorships are equally egregious.

The guiding principle is that government has no role to play in the religious sphere – neither to advance or be hostile towards religion. In America, we have both freedom from (government sponsored) religion and freedom of religion. The former is guaranteed by the Establishment Clause of the First Amendment, the latter is guaranteed by the Free Exercise Clause of the First Amendment.

We owe much to the name sakes of the JM Center – Presidents Thomas Jefferson (1801- 1809) and James Madison (1808 – 1817) – two of our Founding Fathers who were most instrumental in laying the foundation for religious freedom in America. Jefferson authored the Virginia Statute for Religious Freedom and Madison proposed the Bill of Rights and sheparded its passage. To them, separation of religion and government were critical components of freedom in the new nation.

The road to religious freedom has been rocky from the very beginning when the first European settlers landed at Jamestown, Virginia in 1607. Space does not permit this blog to recant history in detail. Instead, I offer the following continuing major violations of religious liberty by the federal government:

  • Congressional paid chaplains. (1789)
  •  National Day of Prayer. (1952) (36 U.S.C. § 119)
  • “under God” added to the Pledge of Allegiance. (1954) (4 U.S.C. § 4)
  • “In God We Trust” adopted as national motto. (1956) (36 U.S.C. § 302)
  • “In God We Trust” added to paper currency. (1957)
  • The Supreme Court opening each session with the prayer: “Oyez! Oyez! Oyez! … God save the United States and this Honorable Court.”
  • The Chief Justice adding “So help me God” to the presidential oath prescribed by the Constitution and the invocation and benediction in presidential inaugural ceremonies. (Note: I served as co-counsel in Newdow v. Roberts, No. 10-757 (cert. denied May 16, 2011) challenging these practices).
  • Cross atop Mount Soledad near San Diego, California. (See Mount Soledad Memorial Association v. Trunk, Nos. 11-998 and 11-1115 (cert. denied June 25, 2012).
  • Presidential Thanksgiving Day proclamations.
  • Military bands playing “God Bless America.”
  • The housing allowance exemption granted to “ministers of the gospel.” (IRC § 107)
  • Government “economic development” and other grants to religious organizations.
  • President Obama’s White House Office of Faith-Based and Neighborhood Partnerships (and previously President Bush’s Office of Faith-Based and Community Initiatives).
  • Politicians/elected officials ending speeches with “God bless America.” (While hideous practice does not violate of the Constitution, the pandering to Christians violates the spirit of the First Amendment.)

I leave for another day a detailed discussion of the serious harms these practices inflict on our liberties and system of governance and would merely note that the quotes from the 9th Circuit in my blog Supreme Court KO’s the Mt. Soledad Cross of earlier today briefly discusses the nature of the violations and harms.

Just as then Senator John F. Kennedy said in his famous 1960 Houston speech: “I believe in an America where the separation of church and state is absolute” – I too look to the day government absents itself from religion and the dream of freedom of religion in America is realized. THEN let us light the fireworks.

Bob Ritter / JM Center

Posted in Christian cross, Church & State, Establishment Clause, Motto, Mt. Soledad cross, Pledge, President, President John F. Kennedy, Religious symbols, Separation of church and state | No Comments »

Supreme Court KO’s the Mt. Soledad Cross

Wednesday, July 4th, 2012

On the same day the Supreme Court recently handed down its decision in the high profile Arizona immigration case, it quietly denied a request to hear a case that is contributing to the dismantling of the Christian Wall in America.

I was presently surprised by the Court’s decision not to hear Mount Soledad Memorial Association’s appeal of the 9th Circuit’s 2011 decision holding that the 43-feet high Christian cross overlooking San Diego violated the Establishment Clause of the First Amendment.

I was surprised because the case – Mount Soledad Memorial Association v. Trunk, Docket Nos. 11-998 and 11-1115 (cert. denied June 25, 2012) – has been in continuous litigation since 1989 and was the most prominent of three major cross cases to come before the Court in recent years.  I felt that surely the five Christian Right justices on the Court had the four votes necessary to hear the case.  But that didn’t happen.

Why?  We don’t know because the Court’s deliberations are made in private conferences.  Here are five possible reasons the Supreme Court denied certiorari.

First, Mount Soledad came to the Court in a negative posture – both in terms of the 9th Circuit’s holding that the government’s display of the Mount Soledad cross violated the First Amendment and there being no split among the circuits with respect to the Establishment Clause jurisprudence concerning the government’s display of a lone Latin cross.  See, for example, Salazar v. Buono (holding the Mojave desert cross violated the Establishment Clause), American Atheists v. Duncan, 616 F.3d 1145 (10th Cir. 2010) (holding the crosses erected by the Utah Highway Patrol Association on Utah property and highway rights of way violated the Establishment Clause) and American Atheists, Inc. v. City of Starke, 509 F.Supp.2d 1221 (M.D. Fla., 2007) (a district court in the 11th Circuit) (holding the cross atop the City of Starke’s water tower violated the Establishment Clause).

Here are some of the things the 9th Circuit had to say about the Latin cross – the preeminent symbol of the Christian faith – displayed atop Mount Soledad:

 

“History would lead the reasonable observer to perceive a religious message in the Memorial.”  Trunk v. City of San Diego, 629 F.3d 1099, 1118-19 (9th Cir. 2011)

 

“The centrality and prominence of the Cross in the Memorial distinguishes the Memorial from other war memorials containing crosses.” Id. at 1124.

 

“The use of such a distinctively Christian symbol to honor all veterans sends a strong message of endorsement and exclusion. It suggests that the government is so connected to a particular religion that it treats that religion’s symbolism as its own, as universal. To many non-Christian veterans, this claim of universality is alienating.”  Id. at 1124-25.

 

“By claiming to honor all service members with a symbol that is intrinsically connected to a particular religion, the government sends an implicit 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 of the political community.’”  (Internal citation omitted.)  Id. at 1125.

Second, the fact that the Mount Soledad cross is by far the most prominent of the crosses in the cases mentioned above suggests that the Chief Justice and Justices Scalia, Thomas, Kennedy and Alito simply do not have enough judicial tricks (or a plausible sham secular purpose) to reverse the decision below.

Third, one has to wonder whether the Court was exhausted after spending a lot of judicial capital on the Mojave desert cross case (Salazar v. Buono, 559 U.S. ___ (2010)).  In Buono, Justice Scalia made a mockery of himself when he insisted that the Christian cross is a universal symbol of death and remembrance.  The attorney representing Frank Buono responded that Christian crosses are never found in Jewish cemeteries.  People in the courtroom laughed.  Justice Scalia’s face turned fiery red.

It is worth noting that the United States prevailed in the Mojave cross case because Congress exercised its power under Art. IV, Sec. 3, cl. 2 of the Constitution to dispose of (i.e., transfer) the acre of land upon which the cross was erected to a private party (in exchange for five acres elsewhere in the Mojave National Preserve).  Consequently, the Court side stepped the issue of whether the Mojave cross violated the First Amendment.  In contrast, Congress used its power of eminent domain in the present case to seize the Mount Soledad cross from the City of San Diego in an attempt to circumvent the lower courts’ decisions.  However, the federal government’s ownership and control would ultimately cause it to lose the case.  

Fourth, the Court held in Pleasant Grove City v. Summum, 555 U.S. 460 (2009) the “speech” of permanent monuments on government property is government speech.  While the Court also held in that case the government is free to choose its own speech, the exception is that government is not free to violate the Establishment Clause as it has in Mount Soledad.  

And fifth, Justice Alito, in a “statement” accompanying the denial of certiorari in Mt. Soledad, said that he agreed with the Court’s decision not to hear the case because the case was not “final,” that is, because the case will be sent back to the U.S. District Court to determine the disposition of the cross.  While the lack of “ripeness” is a valid basis for declining to hear the case, in this particular case Justice Alito’s statement reads more like a face saving apology.

It will be months, perhaps years, before the case is resolved but ultimately I believe that the cross atop Mount Soledad will be removed to private property and an appropriate memorial suitable for all veterans – of faith and no faith – will eventually placed on the pedestal atop Mount Soledad.  At that time, the height of the Christian Wall will be lowered and America’s pluralism will shine brighter.

Bob Ritter / JM Center

Posted in American Atheists, American Atheists v. City of Starke, American Atheists v. Duncan, Christian cross, Christian Right, Establishment Clause, Mount Soledad Memorial Association, Mt. Soledad cross, Religious symbols, Salazar v. Buono | No Comments »

Utah crosses gotta come down

Friday, November 4th, 2011

On Monday, the Supreme Court declined to hear a case involving government-permitted Christian crosses along roadways in Utah. As a consequence, the decision of a three-judge panel of the 10th Circuit U.S. Court of Appeals holding that the state violated the Establishment Clause of the First Amendment stands and the crosses on public property will have to come down.

The Utah Highway Patrol Association (UHPA), with the permission of the state of Utah, erected twelve crosses on public property to memorialize fallen Utah Highway Patrolmen. Represented by the alliance Defense Fund, UHPA said that the crosses are secular symbols that “convey the nonreligious messages of individualized commemoration and roadway safety.” (I bet you won’t find the Christian cross as a safety symbol in Utah’s drivers manual.) With good reason, the appeals court found that the Latin cross is the preeminent symbol of Christianity and that a reasonable observer would see the crosses as endorsements of religion.

A couple of points are worth noting. First, Justice Thomas was the lone justice voting to hear the case. Four justices must vote in favor of hearing the case for the Court to put it on its docket for oral argument. In his dissenting opinion, Justice Thomas said that the Court should take the case in order to “provide clarity to an Establishment Clause jurisprudence in shambles.”  While disagreement among the circuits is a major reason for the Supreme Court agreeing to hear a case, perhaps in this case it is the reason that the Court voted not to hear the case. It may well be that the Court is too split at this time to provide the clarification the Justice Thomas is seeking. And I might add that Justice Thomas’s views on church-state matters are among the most divisive.

Second, the Court may have declined to take the case for tactical and strategic reasons. Tactically, the Court last term decided the case of Salazar v. Buono involving a Christian cross in the Mojave National Preserve in California. The Court split 5-4 in that case and sent it back for further proceedings. In one sense, then, it may be too soon to hear another “cross case.”

But strategically, several Christian Right justices may well have an eye on a 9th Circuit cross case  — Jewish War Veterans v. City of San Diego – that they would prefer to hear. That case involves a 43-feet high Christian cross atop Mount Soledad. Perhaps these justices were willing to sacrifice the Utah case for the bigger fish — the Mount Soledad cross. In short, three cross cases in such a short period would be too big a burden for the Court to bare.

If Justice Thomas wants clarification of the Establishment Clause, I recommend that he take a stroll down memory lane sixty-four years to remind himself of Justice Black’s majority opinion in Everson v. Board of Education (1947): “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable.”

Bob Ritter / JM Center

Posted in American Atheists, Christian cross, Church & State, Establishment Clause, Mt. Soledad cross, Religious symbols | 1 Comment »

Pres. Obama gets an “F” on religious liberty

Sunday, October 30th, 2011

President Barack Obama is an absolute failure when it comes to religious liberty.

President Barack Obama

Responding to a petition of more than 5,000 signatures calling for elimination of “under God” in the Pledge of Allegiance and repeal of the motto “In God We Trust,” President Obama slapped secularists in the face by saying “A sense of proportion should also guide those who police the boundaries between church and state.” (Sounds to me like a president more worried about re-election than doing the right thing.)

In over 40 years of studying the Constitution, I’ve never heard such a lame excuse for violating the First Amendment’s principle of separation of church and state. One of the reasons for America’s greatness is that we do not take a poll to see which way the wind is blowing to determine fundamental rights. Inalienable rights are inalienable.

The Supreme Court has said in numerous cases (e.g., McCreary County v. ACLU of Kentucky (2005)) that government may not prefer one religion over another, or religion over nonreligion. No matter what angle we look at the Pledge and the motto, “under God” and “In God We Trust” are blatant endorsements of monotheistic religion in violation of the First Amendment.

This isn’t the first time the Obama Administration has been on the wrong side of separation of church and state. He was wrong side for infusing religion into his presidential inaugural ceremony (see Newdow v. Obama, which I served as co-counsel for the plaintiffs), his Department of Justice supported displays of Christian crosses in the Mojave National Preserve and atop of Mount Soledad (Salazar v. Buono and Jewish War Veterans v. City of San Diego, respectively) and he has permitted religious discrimination in hiring in government funded social services. Internationally, puts Saudi oil ahead of religious freedom.

On the matter of religious freedom, President Obama has flunked the test of fidelity to the Constitution. So much for his having been a Con Law professor.

Bob Ritter / JM Center

Posted in ACLU, Church & State, Establishment Clause, Motto, Mt. Soledad cross, Pledge, President | No Comments »

Judge Bea’s bizarre theory of (religious) evolution

Wednesday, October 19th, 2011

Someone please tell Judge Carlos Bea that a large Christian cross is a large Christian cross is a large Christian cross. Its religious meaning does not change when a government surrounds it with US flags – in fact, it makes government’s First Amendment violation of endorsement of religion much worse.

Judge Bea, who sits on the 9th Circuit US Court of Appeals, recently wrote a dissenting opinion to the court’s denial of a petition for rehearing en banc in Jewish War Veterans v. City of San Diego (9 Cir., Oct. 14, 2011). The refusal to review a three judge panel’s decision that the presence of a 43-feet high Christian cross on Mount Soledad constitutes a governmental endorsement of religion in violation of the prohibitions of the First Amendment means that the panel’s decision stands.

 

Mount Soledad Cross (Courtesy of Wikipedia)

Judge Bea’s argument is this. After the city lost at every point in 17 years of litigation, the federal government purchased the Mount Soledad Memorial from the City of San Diego in 2006, including its large cross. Just as the Supreme Court found in Lynch v. Donnelly, 465 U.S. 668 (1984) that government can hide a Christian nativity scene among a Santa Claus house, reindeer, candy-striped poles, colored lights, etc. to make the holiday display secular, Judge Bea seems to believe that the 43-feet high Mount Soledad cross can be hidden among any US flags and over 2,100 placques, thereby removing the religious taint.

His dissenting opinion is a perfect example of judicial activism – the use of opinions to obtain results consistent with the judge’s personal beliefs but inconsistent with the Constitution.

I strongly recommend to Judge Bea that he read the transcript (relevant portion excerpted below) of oral arguments in Salazar v. Buono, 130 S.Ct. 1803 (2010) to understand how mistaken he is to believe that a Christian cross is a universal symbol of death and remembrance. The following exchange between Justice Antonin Scalia and Peter Eliasberg of the ACLU of Southern California illustrates the point:

JUSTICE SCALIA: It’s [the Mt. Soledad cross] erected as a war memorial.  I assume it is erected in honor of all of the war dead. It’s the — the cross is the — is the most common symbol of — of — of the resting place of the dead, and it doesn’t seem to me — what would you have them erect?   A cross — some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point.  The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.

(Laughter.)

MR. ELIASBERG: So it is the most common symbol to honor Christians.

JUSTICE SCALIA: I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead.  I think that’s an outrageous conclusion.

Transcript at 38-39.

The simple point is that just as Justice Scalia’s Roman Catholicism prevented him from seeing the tree (Christian cross) for the forest (his religion), Judge Bea suffers from the same myopia. While I too laughed in the courtroom that day at Justice Scalia’s ignorance, it is a very sad how out of touch he is from reality. It is also unfortunate for our country.

Coincidentally, I toured the King David Memorial Gardens in Falls Church, Virginia for some research I was doing on religious symbols. Eliasberg was correct. I found no Christian crosses on the grave markers in the Jewish cemetery. Further, neither of my parents were Christian at the time of their deaths and neither has a Christian cross on their grave stones in Arlington National Cemetery. These examples, plus the fact that the Department of Veteran Affairs has approved 48 emblems of belief is incontrovertible evidence that the Christian cross is not a universal symbol of death and remembrance.  Rather, its use solely reflective of the large number of Christians in the US population.

Judge Bea cites Chief Justice Rhenquist’s plurality opinion in Van Orden v. Perry, 545 U.S. 677 (2005) to support his theory of evolution that the meaning of religious symbols can change over time and become secular.  His reliance is misplaced.  Aside from the fact that evolution takes substantially longer than the time it takes to transfer property, there was no majority opinion in Van Orden. The disingenuous reasoning of the five justices holding that display of the Fraternal Order of Eagles donated Ten Commandments monument on the Texas state capitol grounds did not violate the Establishment Clause is one of the worst reasoned Supreme Court cases of all time. For example,the Chief Justice wrote:

The inclusion of the Commandments monument in this group has a dual significance, partaking of both religion and government, that cannot be said to violate the Establishment Clause.  …

Despite the Commandments’ religious message, an inquiry into the context in which the text of the Commandments is used demonstrates that the Commandments also convey a secular moral message about proper standards of social conduct and a message about the historic relation between those standards and the law.

Van Orden at 678-679 (2005).

The Chief Justice was absolutely wrong. Taken as a whole, there is nothing secular about the Eagles Commandments monument in Austin, Texas which boldly states in large letters: “the Ten Commandments – I AM the LORD thy God” and then lists ten or eleven commandments (depending upon how you count). The monument is purely religious and was donated by the Fraternal Order of Eagles as part of a scheme concocted by Judge E.J. Ruegemer to promote Christianity. (See my ebook Supreme Scandal: The Supreme Court Blesses the Ten Commandments (currently a work in progress.))

Judge Bea quotes Chief Justice Rhenquist’s opinion in Van Orden to support his theory of evolution:

Of course, the Ten Commandments are religious—they were so viewed at their inception and so remain.  The monument, therefore, has religious significance.  According to Judeo-Christian belief, the Ten Commandments were given to Moses by God on Mt. Sinai.  But Moses was a lawgiver as well as a religious leader.  And the Ten Commandments have an undeniable historical meaning, as the foregoing examples demonstrate. Simply having a religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.

Quoting Van Orden v. Perry, 545 U.S. 677, 690 (2005) at 18971.  The last quoted sentence above of the Chief Justice’s opinion is totally bizarre given that the state of Texas uses the monument to promote Christianity especially when one considers that the Ten Commandments was primary content of the monument. Similarly, the Mount Soledad cross is the dominating feature of the Mount Soledad Memorial.

Arguing that “context” is critical and that the context is a war memorial, Judge Bea discredits the Lemon test. (At 18973-74.)  In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court held that to withstand an Establishment Clause challenge to a governmental action, the act: (1) must have a secular purpose, (2) must not have the primary effect of either advancing or inhibiting religion and (3) must not result in an “excessive government entanglement” with religion. Obviously, the real problem that the Christian Right has with the Lemon test is that its use prevents them from using government to promote their religion. In Jewish War Veterans, the federal government’s (as did San Diego before it) use of a Christian cross to memorialize war dead clearly violates all three prongs of the Lemon test. Its purpose was religious. Its effect is religious. And its display entails an excessive entanglement with religion.

In summary, the federal government’s purchase of the Mount Soledad Memorial was a brazen attempt to save the cross as an element of the memorial. Having violating all three prongs of the Lemon test – three strikes – the Christian cross should be removed from Mount Soledad forthwith.

Bob Ritter / JM Center

Posted in Christian cross, Church & State, Establishment Clause, Mt. Soledad cross, Religious symbols | No Comments »