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Federal appeals court finds California memorial cross unconstitutional

By Julia Zebley

[JURIST] A three-judge panel of the US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] unanimously Tuesday that California's Mount Soledad cross, a 43-foot cross erected as a Korean War veterans' memorial, is unconstitutional under the First Amendment [text]. Justice M. Margaret McKeown declared, "[t]he 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." Although the cross was found unconstitutional, there was no order for removal, and the court suggested the monument could be altered to achieve constitutionality, without giving any specific recommendations. The American Civil Liberties Union of San Diego (ACLU) [advocacy website], one of the parties to the case, stated [press release] that they were, "pleased that the court recognized the fundamental principle barring the government from playing favorites with religion." The Mount Soledad Memorial Association [official website] plans to appeal [KPBS News] to the US Supreme Court [official website], citing Justice Anthony Kennedy's stay on removing the cross [JURIST report] in July 2006 as hope that that the court will rule in their favor.

In April, the US Supreme Court ruled [JURIST report] in Salazar v. Buono [Cornell LII backgrounder] that the lower courts were wrong to ban the government from transferring public land containing a religious symbol to a private entity. This is similar to a long-standing proposed solution for the Mount Soledad cross, as the ACLU has suggested moving the cross to a private religious site [ACLU backgrounder, PDF]. In August 2006, then-president George W. Bush signed [JURIST report] a bill [HR 5863 summary; PDF text] into law that transferred ownership of the Mount Soledad cross to the federal government. The cross, which was erected as a Korean War veterans memorial, has been the center of a religious dispute for 21 years, which began when Philip Paulson, a Vietnam veteran and atheist, challenged the cross as a government endorsement of religion prohibited under the First Amendment and filed the original suit in 1989. Paulson died in 2006. Recently, highway memorial crosses and crosses on license plates [JURIST reports] have also been found unconstitutional by federal courts.

Full post as published by JURIST - The Paper Chase on January 05, 2011 (boomark / email).