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VICTORY: Mt. Soledad Veterans Memorial Cross Saved from Being Torn Down

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July 23, 2015

U.S. government transfers memorial and surrounding land to Mt. Soledad Memorial Association, ending a long legal dispute over the memorial’s constitutionality

This week, the U.S. government sold the historic Mt. Soledad Veterans Memorial in San Diego, CA to our client, the Mt. Soledad Memorial Association (MSMA). The sale of the memorial and its surrounding land should end a long legal dispute regarding the constitutionality of the memorial on government land.

First Liberty Institute Deputy Chief Counsel Hiram Sasser said, “The Mt. Soledad Veterans Memorial Cross has stood since 1954 as a symbol of the selfless sacrifice of our nation’s veterans. Such a sacred memorial should receive our highest honor and protection. Today’s actions will ensure that the memorial will continue to stand in honor of our veterans for decades to come. This is a great victory for the veterans who originally placed this memorial and the Korean War veterans the memorial honors. We thank our lead counsel, Allyson Ho, and her team at Morgan, Lewis & Bockius, who worked tirelessly to defend the memorial, leading to this ultimate victory.” 

LEGAL STORM DESCENDS ON PEACEFUL MOUNT

The Mt. Soledad Veterans Memorial is the first Korean War Veterans Memorial on U.S. soil. Standing high on an 800-foot hilltop in San Diego, California, it includes a 29-foot cross with a plaque identifying it as a veterans memorial. The memorial is surrounded by large granite walls that display photos and names of America’s veterans, along with various and diverse religious and secular symbols. Over 3,500 Americans are honored—including presidents (Ronald Reagan, Dwight Eisenhower), generals, and men and women whose names are not familiar, but who proudly served to help preserve America’s freedom.

The site is also among the most prominent veterans memorials in the nation. Overlooking the Pacific Ocean and several military bases stretching up the coast, for decades it has been a pilgrimage destination for veterans, their families, and other citizens, and for that reason an important part of national, regional, and community heritage.

But for more than 20 years, this veterans memorial also has been the target of high-profile legal attacks seeking to destroy it.

Most significantly, it has been the subject of a lawsuit brought about by the American Civil Liberties Union (ACLU), which claims the memorial’s cross violates the First Amendment’s Establishment Clause. In January 2011, during the legal dispute over the memorial, the U.S. Circuit Court of Appeals for the Ninth Circuit ruled the cross unconstitutional.

First Liberty Institute and its volunteer attorney team at Morgan, Lewis & Bockius LLP joined the fight on behalf of the MSMA—which is comprised of veterans who originally erected the memorial in 1954 and who have served as caretakers of the memorial for more than half a century—to save the Mt. Soledad Veterans Memorial cross. In February of 2012, First Liberty Institute filed a petition with the U.S. Supreme Court on behalf of the MSMA seeking to have the Ninth Circuit decision overturned. The next month, the U.S. Department of Justice also joined the appeal.

However, because the Ninth Circuit ruling had not specified a remedy, the Supreme Court sent it back to the district court, saying the Supreme Court could consider it again once the lower courts had determined what they recommended happen to the memorial.

ACLU: TEAR DOWN THIS CROSS!

In July 2013, in advance of a district court hearing, the ACLU submitted its brief in which it proposed its remedy to end the case: tear down the cross. Five months later, U.S. District Judge Larry A. Burns of the U.S. Southern District Court for the Southern District of California reluctantly ruled in favor of the ACLU, ordering the historic memorial cross torn down. But the judge did grant a stay, giving First Liberty Institute and the MSMA the opportunity to appeal. First Liberty Institute and the MSMA did so a few days later, and in February 2014, the U.S. government joined First Liberty Institute and the MSMA in appealing the ruling.

In March 2014, First Liberty Institute filed a petition asking the U.S. Supreme Court to hear the case immediately. However, on June 30, 2014, the Supreme Court denied the request by the MSMA to review the case early, instead opting to review the case after it was considered by the U.S. Court of Appeals for the Ninth Circuit.

In October 2014, First Liberty Institute filed its opening brief in the Ninth Circuit, and the next month 27 strategic allies (including 13 states, 3 U.S. military veterans, multiple public policy organizations, and Rep. Duncan D. Hunter (R-CA) stepped forward with several friend-of-the-court briefs, urging the appeals court to rule in favor of allowing the cross at the memorial to remain standing.

After more than two decades of attempts to remove the cross had not achieved that result, and with the prospect of a long judicial battle ahead and defenders of the cross unwilling to yield, last year a legislative remedy was proposed. The National Defense Authorization Act of 2015 called for the federal government’s sale of the property to the MSMA, and this was passed by Congress and signed by the President, leading to the transfer of the land.

With the transfer of the site, the goal of saving this historic memorial intact has been accomplished, and the legal threats against the cross will presumably cease.

PROTECTING THE HONOR OF VETERANS’ SACRIFICE

First Liberty Institute is grateful for the victory protecting the Mt. Soledad Veterans Memorial Cross and is committed to continuing to defending veterans memorials that are under attack for containing religious imagery.

“This is a day to celebrate,” says First Liberty Institute’s General Counsel Jeff Mateer. “But the work is not over in protecting veterans memorials from legal attacks by organizations opposed to veterans memorials containing religious imagery on public land.”

In addition to the Mt. Soledad Veterans Memorial, First Liberty Institute is currently defending the Bladensburg World War I Veterans Memorial, a cross-shaped memorial that honors servicemen from Prince George’s County, Maryland, who died in World War I. In 2010, representing the Veterans of Foreign Wars (VFW), First Liberty Institute assisted in preventing the ACLU from tearing down the Mojave Desert Veterans Memorial Cross in a precedent setting U.S. Supreme Court case.

So the battle goes on. With hundreds of veterans memorial containing religious imagery or inscriptions on government land across the nation, the protection of the Mt. Soledad Veterans Memorial is another welcome moment in a long and important struggle.

 


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The Mt. Soledad Veterans Memorial, including the cross, survived because First Liberty Institute supporters allowed us to recruit and coordinate one of the leading appellate attorneys in the nation—who represented our client at no charge! Please give a donation to celebrate the Mt. Soledad victory . . . to help defend more such landmarks of America’s heritage, and restore religious freedom to more Americans in strategic, high-impact legal cases. Thank you!

About First Liberty Institute
First Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit www.FirstLiberty.org.

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