Horace Cooper: A Fitting Memorial That Honors Sacrifice


ACRU Staff


April 23, 2009

This Article originally appeared in the May issue of VFW Magazine.

Mt. Soledad National Veterans Memorial in San Diego may soon be saved from the ravages of the ACLU.

While most Americans readily embrace the opportunity to honor our nation’s fallen, increasingly some have become critical if not hostile to this effort, particularly when religion or expressions of faith are involved.

Rather than seeing the majesty of faith and sacrifice intertwined as part of a memorial, groups like the American Civil Liberties Union (ACLU) and their sympathizers have sought through litigation to attack memorial sites across the nation. One such target is the Mt. Soledad National Veterans Memorial in San Diego.

For the past 20 years, the ACLU has fought to have the 29-foot Latin cross that was erected on the site to honor the fallen removed. As you might imagine, this litigation effort has been time-consuming, and it has been a major financial burden for the memorial’s supporters.

But because of men like Bill Kellogg, president of the Mt. Soledad National Veterans Memorial Association since 1989, Mt. Soledad has been able to fight ACLU’s “misplaced aggression,” as he calls it. Although the journey has been long, a legal victory is relatively close.

Lengthy History

What is Mt. Soledad? It is a nearly 100-year-old war memorial park in San Diego. Its first use as a memorial occurred in 1914, and it formally became part of the San Diego city parks system in 1916. Notably, from its inception as a park there has been a cross on the property. During WWII, it became a part of the military’s early warning defense system. In 1954, a 29-foot Latin cross was erected to honor Korean War veterans.

However, it wasn’t until 1989, some 75 years after it opened, that the first lawsuit was filed against the city of San Diego. The ACLU suit claimed the cross violated both the U.S. Constitution and the California Constitution. San Diego responded that the park was a war memorial open to all visitors no matter what they believe.

Without ruling on the U.S. Constitution, federal Judge Gordon Thompson struck down the memorial on state constitutional grounds, finding that the cross was in a public park maintained at taxpayer expense. It’s ironic that San Diego…a city that was named after a Catholic saint…isn’t allowed under California law to operate a war memorial if a cross is present.

The city sought to resolve the matter by transferring the property to a private organization by a public referendum. This referendum succeeded in 1992. Around the same time, the city appealed Thompson’s ruling.

Not unexpectedly, the 9th Circuit Court of Appeals upheld the injunction, holding that the designation of the cross as a war memorial was not enough to meet the requirements of the California Constitution. Even after being granted the right to re-argue the case en banc…that is, before the entire circuit…San Diego lost.

At this point, the city went forward with its plans to formally transfer the property using the authority gained from the city-passed referendum. San Diego sold roughly 224 square feet of land at the foot of the cross to the Mount Soledad Association. It is a non-profit organization committed to maintaining the cross and the memorial associated with it. But this didn’t satisfy the opponents of the memorial.

Back to Court

The ACLU went back to court and in 1997 successfully convinced Thompson to strike down the transfer as a continuing violation of the California Constitution. In his order, the judge gave the city 30 days to take the cross down.

Kellogg, who says “the San Diego VFW and all area veterans groups are strongly involved in providing support,” convinced former San Diego Rep. Duncan Hunter to transfer the property to the federal government. In 2006, President Bush signed the law and Mt. Soledad became an official federal memorial park.

While most thought that this would end the nearly 20-year litigation campaign, they were wrong. The ACLU began the process all over again. But this time the news looks better. The case will be decided solely on federal law and the U.S. Constitution, not California law.

What does this mean? Under the U.S. Constitution a memorial like Mt. Soledad, open to the entire public, does not violate the First Amendment’s “establishment clause” merely because its maintenance and upkeep necessitate taxpayer funds.

Instead, its existence merely encourages religious expression and acknowledges America’s religious heritage. To rule otherwise potentially threatens every federal memorial in our country, including the famed Arlington National Cemetery.

In a rare win, a new federal district judge, Larry Burns, ruled last summer that the memorial was indeed constitutional. Unfortunately, the ACLU appealed that decision. And that means the same 9th Circuit will consider this case again.

Continuing Battle

But this time the law and history are on the side of Mt. Soledad. Many experts predict no matter what the ruling of the 9th Circuit, this case is headed to the Supreme Court.

Finally, the highest court in the land will rule on this case, recognizing that the principle that it is asked to uphold will have implications across the land. This Memorial Day let’s hope that the justices recognize that Mt. Soledad and memorials like it are a fitting remembrance for those who died for our freedom.

Meanwhile, “We’re committed to the memorial,” says Jack Porath of VFW Post 11044 in San Diego. “We will continue to provide docents, and our volunteers will help with activities such as flag raising.”

Horace Cooper is a senior fellow with the American Civil Rights Union.



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