Constitutionality of Mt. Soledad veterans’ memorial cross to be defended in court

San Diego, Calif., Apr 3, 2009 / 02:50 am

Arguing that removing the memorial would cause “real, irreparable harm” to war heroes and their families, the Thomas More Law Center has filed a brief opposing a legal challenge to the constitutionality of California’s historic Mt. Soledad cross which honors veterans of the U.S. armed forces.

Over 2,100 plaques honoring individuals or groups of veterans are displayed near the Mt. Soledad cross, which is the centerpiece of the veterans’ memorial. Some of the plaques display Stars of David in honor of Jewish veterans. A large American flag flies at the memorial’s base.

In 2004 the cross was scheduled to be taken down following an agreement between the City of San Diego and an atheist who sought to remove the memorial. The Law Center then began its legal defense of the cross, prevailing in state and federal courts. It successfully petitioned the federal government to transfer the property from city to federal property, rendering powerless the district court’s order to remove the cross.

The American Civil Liberties Union (ACLU) then filed a federal lawsuit challenging the constitutionality of the cross and the propriety of the property transfer. That suit was dismissed by a federal district court judge in July 2008.

The ACLU is appealing the ruling to the U.S. Court of Appeals for the Ninth Circuit, where federal government lawyers will defend the constitutionality of the cross.

According to a press release from the Law Center, it has filed an amicus curiae brief in the memorial’s defense.

Robert Muise, the Thomas More Law Center attorney and former Marine officer who authored the brief, said the amicus brief demonstrates that tearing down the cross will cause “real, irreparable harm to our war heroes and their grieving families, as compared with the contrived ‘harm’ the ACLU will ‘feel’ because the memorial cross remains.” 

“Indeed, it is the ACLU in this case that is creating the sort of religiously-based divisiveness that our Constitution was designed to prohibit,” he remarked.

The brief was filed on behalf of former Navy pilot and prisoner of war Rear Admiral Jeremiah Denton (Ret.) and the families of Marine Majors Michael D. Martino and Gerald Bloomfield, III, who were both killed in Iraq in November 2005 when their attack helicopter was shot down.

All three have had plaques in their honor placed under the Mt. Soledad cross.

Rear Admiral Denton, a former U.S. Senator from Alabama, came to national prominence during a television interview arranged by his North Vietnamese captors in 1966. Denton affirmed his support for the United States while blinking his eyes in Morse Code, repeatedly spelling out the message “TORTURE.”

Denton was himself tortured and was the first American military captive to be subjected to four years of solitary confinement, the Law Center reports. He was released from captivity in 1973.

In May 2006, Major Martino and Major Bloomfield’s unit, having recently returned from Iraq, sponsored a plaque dedication ceremony at the memorial to commemorate the fallen Marines’ service. According to the Law Center, more than 300 Marines stood in line for over three hours to meet the Marines’ families and to pay respect to their fallen comrades.

The Law Center argued that the cross conveys “an unmistakably American message of patriotism and self-sacrifice” and does not “establish” Christianity as a national religion.