Posted on 08/25/2006 5:19:44 AM PDT by radar101
The local chapter of The American Civil Liberties Union filed suit yesterday to force the Mount Soledad cross to be moved in the latest challenge over the La Jolla landmark's constitutionality.
The suit, filed in San Diego federal court on behalf of a national Jewish war veterans organization and three San Diego residents, is the newest development in an increasingly high-profile, 17-year legal battle over the cross.
On Aug. 14, President Bush signed a bill that transferred the ownership of the cross and war memorial site to the federal government, specifically the Department of Defense.
The bill halted a legal process that seemed destined to lead to the removal of the cross, which has stood on city-owned land for decades.
In May, San Diego federal Judge Gordon Thompson Jr. moved to enforce a decision he handed down in 1991 that the cross had to be removed.
He ruled that it violated the state constitution's ban on government showing a preference for religion. He gave the city 90 days to comply or face $5,000 per day in fines.
This set off a flurry of legal activity that culminated July 7 when U.S. Supreme Court Justice Anthony Kennedy blocked Thompson's order – stopping the clock on the city and allowing time for the congressional bill to move forward.
With the land now belonging to the federal government, the legal battle will shift to how courts interpret the federal – not state – constitutional ban on government support for religion.
Cross supporters contend they have a better chance of winning under the federal analysis. But opponents, including the ACLU, say that virtually nothing has changed with the transfer of land ownership.
“The issue is still the same,” said David Blair-Loy, legal director for the ACLU in San Diego. “We believe it is equally unconstitutional under state law, or federal law, for the government to subsidize, promote or endorse the Latin cross.”
The plaintiffs include the Jewish War Veterans of the United States, formed in 1896, which has posts across the country, including three in San Diego County.
The other plaintiffs are Richard A. Smith of La Jolla, a Navy veteran who is Jewish and the former head of the neurology branch of the Navy's Neuropsychiatric Research Unit in San Diego; Smith's wife, Mina Sagheb, a Muslim; and Judith Copeland, an attorney who has been a San Diego resident since 1974.
The ACLU lawsuit joins another suit challenging the cross, filed Aug. 9 by Philip Paulson, a Vietnam War veteran and atheist who originally sued the city in 1989 to get the cross removed.
That lawsuit argues that the cross not only violates the U.S. Constitution, but also seeks to overturn this summer's congressional action that transferred the property, said James McElroy, Paulson's lawyer.
Both lawsuits likely will be consolidated but will not be heard by Thompson, who has handled the cross litigation for 17 years. Instead, the cases – assigned randomly by a computer – will be heard by federal Judge Barry Ted Moskowitz.
The lawyer for a group trying to preserve the cross predicted that the new lawsuits will fail.
“We just believe whatever arguments they have will be properly dispatched, and we will prevail,” said Charles LiMandri of the San Diegans for the Mt. Soledad National War Memorial.
The group is not named in the ACLU suit, but LiMandri said it will join with the government to defend it.
Yesterday's legal challenge was filed even as two other legal actions in state and federal courts – both of which were in the works before the federal government took the land – are still pending.
Given the changed circumstances in the cross controversy, however, they might never be heard.
The city and LiMandri's group are appealing a ruling by a San Diego Superior Court judge that invalidated Proposition A. That measure, approved by voters last fall, would have allowed the city to transfer the property to the federal government.
The judge ruled the transfer showed an unconstitutional preference for religion under state law.
But now that the land is federal property by congressional, and not city, action, the issues in the case could be moot. LiMandri said his group will file papers dropping their role in the appeal next week.
McElroy, who has had informal discussions with city lawyers, said they may also abandon that appeal.
“It really doesn't get them anywhere, and it is costing them money,” he said.
A similar fate may befall the appeal in federal court. There, the city had tried to overturn Thompson's ruling in May to take the cross down within 90 days, contending it was an abuse of his judicial discretion.
With the cross no longer on city land, that appeal might also be irrelevant, said McElroy, and the city may also consider dropping it.
But Deputy City Attorney David Carlin said no decision on how to proceed on either case has been made. Any final decision would have to be made by the City Council, which is on recess until Sept. 6.
The city has another option aside from dropping the appeals, Carlin said. It could ask the courts that the appeals be put on hold pending the outcome of the latest suits, he said.
A decision would have to be made soon. Both cases are set for oral arguments in October.
Greg Moran: (619) 542-4586; greg.moran@uniontrib.com
I thought Jews were more tolerant than this. I expect it from the ACLU, but Jewish veterans? It seems there is more than just one intolerant religion in the Middle East.
So when will the ACLU file suit against all the sacred Indian sites maintained by the federal government in the national parks?
You can flip through the millions of Jewish veterans who've served honorably and always find one or two to complain, just like any other group.
What does Judaism have to do with it?
More garbage from the Anti-Christian Lawyers Union.
The other plaintiffs are Richard A. Smith of La Jolla, a Navy veteran who is Jewish and the former head of the neurology branch of the Navy's Neuropsychiatric Research Unit in San Diego; Smith's wife, Mina Sagheb, a Muslim;.... It's what the article says. And, while I don't believe everything I read, I would guess that this information is correct.
The ACLU doesn't speak for this Yid. I'm rather the secular individual. Finding the formality and ritual of religion a little put-offish. Doesn't mean I don't respect and admire other's spirituality.
I see the cross on San Diego's hallowed ground as a monument to the great Americans who gave their lives in war. It serves them. Honors them. No more, no less.
But that so many of the legal battles the ACLU fights endlessly, are for the abhorrent, vile, and truly despicable. We might all be able to laugh at them. Instead of feeling constant revulsion. F*ck the ACLU.
Jews are tolerant but you gotta question a Jew whose married to a Muslim....
“The issue is still the same,” said David Blair-Loy, legal director for the ACLU in San Diego. “We believe it is equally unconstitutional under state law, or federal law, for the government to subsidize, promote or endorse the Latin cross.”
Tell that to the men buried under latin crosses in the U.S. cemetery in Colleville-sur Mer near Normandy, France.
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