Robert Knight

While the nation watches to see how the new House leadership flexes its Tea Party-enhanced muscle, the legal campaign to strip the public square of any reminders of America’s Christian heritage continues apace.

On Jan. 4, a three-judge panel of the Ninth Circuit Court of Appeals ruled that the 57-year-old cross atop the Mt. Soledad Veterans Memorial in San Diego is unconstitutional. The decision runs counter to a 2010 U.S. Supreme Court ruling in a similar case at the Mojave National Preserve, as well as a district court ruling that said the Mt. Soledad cross was not unconstitutional because it “communicates the primarily non-religious messages of military service, death and sacrifice.”

In finding the cross unconstitutional, Judge Mary Margaret McKeown, a 1998 Bill Clinton appointee, wrote:

“The history and absolute dominance of the Cross are not mitigated by the belated efforts to add less significant secular elements to the Memorial.”

Perhaps the memorial keepers should have erected a 40-foot Frosty the Snowman next to the cross. Oops. That applies only to nativity scenes and Christmas trees on public land. I’m getting the sops to secular bullies mixed up.

The problem seems to be that the cross is just too big and obvious. That makes it ipso facto offensive. The 43-foot concrete structure can be seen from Interstate 5, for instance.

It’s a wonder that the ACLU, which brought the suit, hasn’t claimed that the cross has caused multiple accidents as atheist, Wiccan, Buddhist, Jewish and Muslim motorists clutch their hearts and keel over their steering wheels upon spying it. Given that the hillside has sported a highly visible cross since 1913, it’s safe to conclude that millions of motorists have made it through that scary stretch without incident. It’s probably less safe to claim this in areas with noxious billboards for “adult” services, but I haven’t checked actual accident statistics, so let’s not go there.

The key aspect that the court ignored in its tortured finding of the First Amendment’s secret intent to wipe out Christian symbols on public land is the element of coercion. Allowing mere expression is quite different from using government power to force observance.

As American Civil Rights Union General Counsel Peter Ferrara points out in his friend of the court brief in Jewish War Veterans vs. the City of San Diego:

“With a clear, simple standard rooted in the text of the Constitution and its surrounding history, this case is easily resolved. The cross at the federal Veterans’ Memorial atop Mt. Soledad does not involve an unconstitutional establishment of religion because it does not involve coercion of any sort. It just sits there, without any specified message….


Robert Knight

Robert Knight is an author, senior fellow for the American Civil Rights Union and a frequent contributor to Townhall.