Attorney Rees Lloyd
May 31, 2010
As Americans gather to remember and honor their war dead at veterans memorials in Memorial Day observances, there have been significant developments in the two most important cases pending regarding the ACLU’s attempts to destroy veterans memorials by Establishment of Religion Clause legal attacks brought on behalf of plaintiffs who complain they are “offended” by the sight of a cross honoring veterans. Those cases are: The Mojave Desert Veterans Memorial Cross Case and the Mount Soledad National Veterans Memorial Cross case. They are certain to be landmarks affecting generations of Americans.
first case, the Mojave Desert Veterans Memorial Cross Case (Salazar
v. Buono) involves a 10-year-long ACLU lawsuit attack on a memorial
established by members of the Veterans of Foreign Wars (VFW) in 1934 to
honor WWI veterans. It consisted of an unadorned eight-foot metal cross
bolted on a rock outcrop known as Sunrise Rock, eleven miles off the highway
in the desert.
The U.S. Supreme Court, on April 28, 2010, overturned orders to destroy the cross which the U.S. District Court in Riverside, CA, issued in 2002, and the 9th Circuit Court of Appeal ordered enforced, at the request of ACLU. The Supreme Court remanded the Mojave Cross Case to the District Court for further proceedings consistent with its ruling. (See, for more details on the ruling and history of the case)
A major new development in the Mojave Case is that on the night of May 9-10, 2010, approximately ten days after the Supreme Court ruled, criminal secular extremists desecrated the memorial by tearing down and carrying away the cross. They have not yet been captured. (Discussed below.)
The second case, the Mt. Soledad National Veterans Memorial Cross Case (Trunk, et al., vs. City of San Diego, et al.), is now in the 21st year of ACLU-backed litigation to destroy the cross there by plaintiffs “offended” by it. The Mt. Soledad Veterans Memorial, established in 1954, contains six concentric walls bearing some 2,700 plaques honoring veterans, leading up to a 29-foot tall cross at the pinnacle of Mt. Soledad, where there has been a cross, in one form or another, since 1913. (See, www.soledadmemorial.com)
Mt. Soledad Case is pending in the 9th Circuit on the appeal of the ACLU
from the decision of the U.S. District Court in San Diego that the cross
does not violate the Establishment of Religion Clause. That court held
that a “reasonable person” would understand that the cross
is there in order to symbolize the selfless service and sacrifice of veterans,
not to endorse any particular religion.
An important development is that the 9th Circuit has now issued an order to the parties for additional legal briefs to be filed in the Mt. Soledad case "on the application of Salazar v. Buono, --- S.Ct. ----, 2010 WL 1687118 (2010), to this case. " (Order issued in Case 3:06-cv-01597-LAB -WMC Trunk, et al v. City of San Diego, et al, USCA Order, May 26, 2010.)
Both the cases, while presenting factual differences, include an Act of Congress transferring a memorial which includes a cross. Further, the language in the Supreme Court’s 5-to-4 Mojave Cross decision written by Justice Kennedy pertaining to inclusion of a cross at a veterans memorial, or more general use of a cross in the public realm, appears to firmly reject the ACLU’s extreme secular position, and to be equally applicable to the Mt. Soledad Veterans Memorial cross. Thus, the order is seen as encouraging by attorneys for veterans fighting the ACLU.
San Diego attorney Charles LiMandri, Regional Director of the Thomas More Law Center, has been the lead attorney fighting the ACLU to save Mt. Soledad “as it is, where it is” in state and federal courts for nearly all of the now twenty-one years that the veterans memorial has been under attack by the ACLU. He said of this latest development:
“We’re encouraged that the 9th circuit appears to be taking seriously the new U.S. Supreme Court precedent which recognizes the right of veterans to have memorials of their choice honoring them for their service, even it means using a cross symbolizing their sacrifice.”
Joseph Infranco, Sr. Attorney of the Alliance Defense Fund which is representing The American Legion Department of California as friend of the court, said: The Supreme Court gave clear guidance in the Mojave memorial case that honoring veterans and acknowledging our nation’s religious heritage is not an establishment of religion. We are encouraged that the appellate court wants to consider this decision’s impact on Mount Soledad. One person’s agenda should not diminish the heroic sacrifice of millions of veterans.”
A key issue in the Mojave Case is land exchange legislation achieved by Congressman Jerry Lewis (R-CA), whose district includes the memorial. The Supreme Court held that the lower courts erred in cavalierly invaliding an Act of Congress authorizing transfer of the one-acre Mojave Memorial to the VFW in exchange for five acres of private land to be donated to the Mojave Preserve by the Sandoz family, which has cared for the cross ever since the passing of the VFW members who originally established the memorial 76 years ago. More specifically, the Supreme Court’s opinion written by Justice Kennedy states:
“Congress adopted a policy with respect to land it now owns in order to resolve a specific controversy….The land-transfer statute embodies Congress’s legislative judgment that this dispute is best resolved through a framework and policy of accommodation for a symbol that, while challenged under the Establishment Clause, has complex meaning beyond the expression of religious views. That judgment should not have been dismissed as an evasion [of the courts’ destruction orders], for the statute brought about a change of law and a congressional statement of policy applicable to the case.”
A key issue in the Mt. Soledad Case is the Mt. Soledad National War Memorial Preservation Act of 2006. It provided for transfer of the Mt. Soledad Memorial from the City of San Diego to the federal Department of Defense. Congress acted after a U.S. District Court had ordered the City of San Diego to destroy or remove the cross within ninety days or the federal judge would fine San Diego citizens $5,000 per day.
Significantly, the Mt. Soledad National War Memorial Preservation Act was adopted by an overwhelming majority in the House of Representative, and with unanimous consent of the U.S. Senate – including then-Senator and now President Barack Hussein Obama; former Senator now Vice President Biden; former Senator Hillary Clinton, now Secretary of State; as well as Senators as geographically diverse as Charles Schumer (NY), Russ Fingold (WI), and Diane Feinstein and Barbara Boxer (CA).
“We thought with unanimous passage of the Act that the long fight to preserve Mt. Soledad ‘as it is, where it is,’ might be over,” said Attorney Charles LiMandri, who, because of his long defense of the Mt. Soledad memorial, was invited to attend the White House ceremonies at which former President George W. Bush signed the Act into law. However, approximately ten days later, on or about August 26, 2006, the ACLU filed a new lawsuit in U.S. District Court in San Diego to invalidate the Act of Congress and to destroy the cross.
the Supreme Court did not reach the Establishment Clause issue directly
in the Mojave Desert Memorial Cross Case, the language used by Justice
Kennedy for the court strongly rejects the ACLU's extreme secularist position
regarding the display of crosses at veterans memorials, and in the public
realm generally. Justice Kennedy wrote:
“[A] Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, a Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”
The Supreme Court decision further pointedly states:
“The goal of avoiding governmental endorsement [of religion] does not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.”
Thus, the Supreme Court’s court’s judgment and its observations as written by Kennedy in the Mojave Desert Cross Case appear to weigh heavily against ACLU’s extremist secular position.
Another development which may also have a significant impact on the Mojave Desert Case -- and which evidences the intolerant fanaticism of secularist extremists – is the criminal tearing down and removal of the Mojave Cross by unidentified but self-proclaimed secularists “offended” by the cross on the night of May 9-10, 2010.
That criminal act, if intended to harm veterans and others fighting the ACLU, has backfired. The desecration provoked nationwide expressions of outrage, and disbelief it could happen in America. The National Commanders of the VFW and the The American Legion denounced the criminal act and vowed to continue the fight to preserve the memorials. Attorney Kelly Shackelford of Liberty Institute (LI) which represents the VFW, National American Legion, and other veterans organizations as friends of the court, denounced the desecration of the cross and announced a $125,000 reward for conviction of the perpetrators. (See, www.DontTearMeDown.com)
The still-at-large perpetrator(s) sent an anonymous letter to a Barstow newspaper, reminiscent of the now-incarcerated Uni-Bomber, setting forth his or their secularist manifesto of why it was necessary to take the law into their own intolerant secularist hands and tear down the cross which the Supreme Court had ruled should be preserved pending further proceedings.
Thus, today, there is no cross at the Mojave Desert Veterans Memorial. The National Park Service has announced it will not allow a replica to be established. But that very fact may finally defeat the ACLU. That is, the Supreme Court remanded the case to the Riverside U.S. District Court to determine, in light of the Supreme Court’s decision, whether there is any longer a need for the lower court’s injunction forbidding the enforcement of Rep. Jerry Lewis’ legislation providing for a land exchange putting the memorial in private hands (the VFW), on private land. Now, there is not even a cross on the land to enjoin the transfer of, or to order destroyed.
Notwithstanding its defeat in the Supreme Court, and the fact that the cross it is so offended by no longer exists, the ACLU has vowed to continue to fight to destroy the memorial on remand. “Fanaticism is the doubling of passion, and the halving of reason,” wrote the philosopher George Santyana. Not for any lack of such fanaticism has the modern ACLU become the Taliban of American liberal secularism.
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Thus, the fight against ACLU will and must go on, in and outside the courts. The importance of defeating the ACLU in both of these cases cannot be overstated. What is at stake in these precedent setting cases is whether 300-million Americans will continue to have the right to honor their war dead and other veterans as they choose, including by memorials which contain a cross or other symbol of our American history and heritage which has a religious aspect; or whether intolerant, secular extremists epitomized by the ACLU, and single persons who claim to be “offended” at the sight of a cross honoring veterans at a memorial, shall have a veto power over those decisions.
[Rees Lloyd, longtime civil rights attorney and American Legionnaire, is the director of the Defense of Veterans Memorials Project of the American Legion Department of California and the Alliance Defense Fund.]
© 2010 Rees Lloyd - All Rights Reserved
REES LLOYD is a longtime civil rights attorney and veterans activist whose work has been honored by, among others, the California Senate and Assembly, and numerous civil rights, workers rights, and veterans rights organizations. He has testified as a constitutional expert at hearings before the U.S. House and Senate representing The American Legion.
He has been profiled, and his work featured, by such varied print media as the Los Angeles Times and American Legion Magazine, and such broadcast media as ABC's Nightline and 20/20, Fox News In The Morning, and, among others, by Hannity. His writings have appeared in a variety of national, regional, and local newspaper, magazine, and other publications. He is a frequent radio commentator, and a sought after speaker.*
[*For identification only. The views expressed here are solely Rees Lloyd's and not necessarily any person, entity or organization he may otherwise represent. ]