Mt. Soledad's Sale Could Leave ACLU Without a Prayer

The American Civil Liberties Union (ACLU) may have run out of bullets to fire at the Mount Soledad Veterans Memorial in San Diego and its 29-foot Latin cross.

High atop a mountain just north of downtown, the cross has driven the ACLU bonkers for years. The Mount Soledad Memorial Association announced Monday that it bought the half-acre of federal land on which the monument stands from the Defense Department for $1.4 million. The National Defense Authorization Act of 2015 included a provision calling for the sale.

The ACLU has filed lawsuits on behalf of the Jewish War Veterans alleging that the lofty monument erected in 1954 and dedicated to Korean War veterans in 1989 was an unconstitutional violation of the doctrine of separation of church and state. They find it particularly annoying that the cross is highly visible above heavily traveled Interstate 5. 

City officials might want to consider adding pullover areas for ACLU’s atheist lawyers and acutely sensitive Christophobic drivers whose hearts stop upon spying the cross, sending them careering into other lanes.

In 2004, Congress enacted a statute transferring ownership of the property to the federal government from the city of San Diego. The city approved the transfer after an extended process including a public referendum in 2005 in which 76% of voters favored the transfer and preservation of the cross.

But a state Superior Court in San Diego ruled the transfer was an unconstitutional establishment of religion. This left the memorial subject to a previous ruling requiring the city to tear the cross down. Appeals were filed, and on it went.

In 2011, the Ninth Circuit U.S. Court of Appeals found the cross unconstitutional, and in 2013, U.S. District Judge Larry Burns ordered the cross torn down within 90 days, but stayed his order. In June 2014, the U.S. Supreme Court refused to hear an appeal of Burns’ order, saying that lower court appeals were not yet exhausted. 

In defense of the cross, the American Civil Rights Union (ACRU) filed a brief in 2006 at the California state appeals court and another three briefs in federal courts in 2008. 

"Surely, virtually no one in San Diego really thinks that by this transfer [of the memorial to the federal government] the city government means to adopt an official endorsement of Christianity and an official disapproval of other religions and city residents who adhere to them," the 2006 ACRU brief stated. "Crosses are ubiquitous at every federal national veterans memorial in the country."

This week’s sale may finally bring the whole thing to a halt, according to the Liberty Institute, which filed an appeal of the Ninth’s 2011 ruling and was representing the Memorial Association.

Although the Los Angeles Times reported that James McElroy, a San Diego lawyer who filed the first suit in 1989, will meet with ACLU lawyers to discuss the sale, Mr. McElroy told the Times that, “We may be getting near the end [of the case], simply for legal and pragmatic reasons.”

ACLU attorney David Loy said he was reserving judgment until reviewing the contract, but that, "Certainly we are glad the government is trying to get out of the business of religion."

If the ACLU finally gives up its decades-long efforts to remove the cross, that would be a relief not only to veterans and their families but to the people of San Diego, who have had to endure endless legal wrangling.

As for the ACLU legal beagles, they would do well to keep their eyes strictly on the road when approaching the curve above which the cross looms as a reminder of the nation’s religious and military heritage. You can take only so many shocks to the system.

Robert Knight is a senior fellow at the American Civil Rights Union. 

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