In a much-publicized decision, the United States
Court of Appeals for the Ninth Circuit ruled that a memorial cross at
the Mt. Soledad veterans’ memorial in San Diego violated the Federal
Constitution. In particular, the Court looked at
the First Amendment and examined the issue under the so-called
“separation of church and state” mantra. The decision may not seem like
much when reported as a news story, but its implications are staggering.
Let’s see why.
Imagine a balance scale capable of weighing
arguments, so that the weightier side prevails. Here’s the alignment of
interests. On one side of the scale, we have a location where a memorial
cross honoring veterans has stood, in one form
or another, since 1913 – nearly a century. The current memorial has
been at the location since 1954, and the area surrounding the memorial
is filled with numerous walls of plaques honoring individual veterans.
After nearly two decades of relentless lawsuits
by the ACLU, the property with the memorial was taken by the Federal
Government in an act of Congress to establish a federal memorial for all
veterans. By Congressional standards, the action was a marvel of both
speed and consensus. More than 80 percent of
representatives in the U.S. House voted for it. The Senate approved
the transfer in a unanimous vote — seen many of those lately?
On the same side of the scale with a unified
Congress, we also have overwhelming community support and the opinion of
the largest veterans’ organizations in the nation, representing
literally millions of veterans. In fact, the veterans’
groups forcefully described the ACLU lawsuit as an insult to the honor
and memory of veterans everywhere. They expressed the surprisingly
easy-to-grasp concept that veterans should be able to say how they would
like to honor their own. So, on one side we have
long-standing tradition, Congress and the President, local residents,
What could possibly be placed on the opposite side
of the scale to tip the balance? The answer is a handful of individuals
who claim to be “offended” by the sight of the memorial. This is not a
misprint or misstatement, and now, if this
three judge panel has its way, it will be the law for much of the
Groups like the ACLU have a long-standing
dysfunctional relationship with memorial crosses. The military has long
used the symbol of a cross to honor soldiers and veterans; consider, for
example, the nation’s second highest military award,
the Distinguished Service Cross. Offended observers irrationally see
here a covert attempt to establish the Christian faith. The very
suggestion defies common sense and experience.
Imagine you are driving down a peaceful country
lane, when you round a curve and see a small cross with flowers planted
on the roadside. What would be your first thought:
someone perished at this spot, or would it be “someone is trying to establish the Christian religion roadside”?
No rational person jumps to the second conclusion. And yet, according
to this decision, the small handful of thin-skinned types who
do must be accommodated.
The comparison is even starker when we look behind
the arguments. The memorial cross stands in mute recognition of
sacrifice, honor, and courage. These attributes were displayed by
veterans, many of whom paid the ultimate price to protect
our freedoms. In a grotesque use of those freedoms, a few individuals
motivated by their personal offense and sense of self-importance, sued
to destroy the symbol honoring those who fought for those freedoms. The
easily-offended ACLU clients behind the suit
try to cloak their actions with pretensions of constitutional dignity,
but the arguments sound more like the yapping of irritated poodles in
the presence of a solemn memorial.
Fortunately, the three judge panel is not the end
of the road. The United States Supreme Court has an opportunity to hear
this case and reverse the terrible injustice. In fact, the Supreme Court
has already hinted about their views on memorial
crosses. In another ACLU lawsuit against a memorial cross, only the
year before, the Supreme Court reversed the same appellate court, though
on a different issue. The majority decision by Justice Anthony Kennedy
featured stirring language about memorial crosses,
which I cannot improve upon, and so I will simply quote:
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, one 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.
Unfortunately, three judges on the Ninth Circuit
didn’t get the message. Americans everywhere are hoping the Supreme
Court will step in again and right this wrong.
Joseph P. Infranco serves as senior legal counsel with the
Alliance Defense Fund
at its headquarters in Scottsdale, Arizona. ADF is a legal alliance
employing a unique combination of strategy, training, funding, and
litigation to protect and preserve religious liberty, the sanctity
of life, marriage, and the family.