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WND Exclusive LAW OF THE LAND Federal judges deciding fate of mountaintop cross Veterans consider civil disobedience if ordered to dismantle memorial Posted: December 10, 2009 12:50 am Eastern
By Chelsea Schilling © 2009 WorldNetDaily
Cross memorial on Mount Soledad
A panel of federal appellate judges began hearing arguments today over the fate of the Mount Soledad cross – and whether the 1954 tribute to American veterans should remain on the La Jolla, Calif., mountaintop or be torn down.
Joe Infranco is a lawyer with the Alliance Defense Fund, a legal group that filed a friend-of-the-court brief on behalf of the American Legion Department of California. He told WND that after 45 minutes of arguments in 9th U.S. Circuit Court of Appeals, it was difficult to tell which way the three-judge panel was leaning.
"There was not a lot of heated debate. There were not pointed questions," he said. "My view of it is that the panel was attempting to reconcile its old views with Supreme Court precedent, which is now very favorable toward the cross."
Two of the panel judges, Harry Pregerson and M. Margaret McKeown, have written or joined decisions opposing crosses on public land. They decided in favor of arguments that crosses violated constitutional prohibition on government endorsement of religion.
The third judge, Richard Páez, is widely known for his opinion supporting San Francisco officials who urged the Vatican to drop a church directive against adoption by same-sex couples.
"I would say that it's not a panel that would overall be friendly to our perspective," Infranco said.
However, he noted, "Any panel – regardless of each judge's individual philosophy – is still bound by the Supreme Court's decisions."
Infranco said Mount Soledad memorial supporters have cause to be optimistic because the Supreme Court's 2005 Van Orden decision, involving arguments about whether a government-sponsored display of the Ten Commandments at the Texas State Capitol in Austin violated the Establishment Clause of the First Amendment, is "strongly in our favor."
The Supreme Court ruled by a vote of 5 to 4 that the Ten Commandments display was constitutional.
The 29-foot Mount Soledad memorial has been the subject of litigation since 1989, when the city of San Diego owned the property. Atheist Philip Paulson, now deceased, sued to have the cross removed. He won in 1991, and the city was unable to sell the land. Congress passed legislation allowing the federal government to immediately take ownership of the land in 2006.
Now the ACLU represents the Jewish War Veterans and three citizens who sued the Department of Defense after Congress acquired the property.
Department of Defense lawyers are now arguing to preserve the Latin cross.
Even after two decades of legal battles, Infranco said it may take some time for the panel to make a decision.
"The 9th Circuit can take a long time," he said. "A decision could come as early as six months or it could be a year.
He said he believes the court will wait for the pending Supreme Court's decision on the Mojave memorial – a simple white cross that is also the subject of litigation.
A group of veterans erected the Mojave cross in 1934. Now, 75 years later, the Supreme Court will determine whether that memorial violates the U.S. Constitution's separation of church and state. The cross is located on federal property in the middle of California's Mojave National Preserve.
Some argue if the Supreme Court rules in favor of the plaintiff in the Mojave case, it will mean memorial crosses across the nation may be required to be torn down. A decision is expected to come in the next few months.
"I think the court is aware that the Mojave memorial case has the potential to affect the outcome of this case," Infranco said.
Regardless of who wins this round, he said he expects the losing party to take the case to the Supreme Court.
"If the Supreme Court does not take the case, and they take very few, then the appellate decision stands," he said.
Asked whether the cross must come down if the Department of Defense does not win its case, Infranco said, "That's an excellent question. I overheard veterans at the argument today talking about civil disobedience if they're ordered to dismantle the cross."
He continued, "This excites a lot of emotion among the veterans. Veterans groups in the country are outraged by this lawsuit."
Poster Comment:
This was not the founders vision for our nation. It isn't even a good vision for our country. More judges need to be behind bars.
