Mount Soledad Cross case about to be resolved?

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Mount Soledad Cross case about to be resolved?

There is a question mark in the title, because I am not convinced this will end it.  The background if you aren't aware is that there is a huge memorial in the shape of a cross towering over San Diego.  It's on Federal Land and the atheists want it down.

Congress has passed a bill that could potentially resolve the long-running church-state conflict featuring San Diego's Mount Soledad veterans memorial and cross.

The Senate passed the bill that sets defense policy by a vote of 89-11 on Friday. The legislation contains a provision from Republican Rep. Duncan Hunter of Alpine that authorizes the defense secretary to essentially sell the land containing the veterans memorial and a 43-foot cross to the Mount Soledad Memorial Association Inc., a private group that already maintains the site.

The House passed the bill last week, so now it goes to President Barack Obama for his signature.

Federal courts have consistently ruled that the cross is an unconstitutional effort by the government to endorse a religion. A judge has ordered the cross's removal.

The article notes that this may or may not end the wrangling.  If the government gives the property to the MSMA for some token amount, or without at least looking at other potential buyers, that may pose another Constitutional issue.  Then again, at this point everyone is aware of the issues, and a ton of lawyers will be involved so I suspect they will affect the transfer in the manner most susceptible to being found proper.

The one thing I took as a positive was the comments of opposing counsel on this:

Local attorney James McElroy represents Steve Trunk, an atheist and Vietnam Veteran who sued the federal government to get the cross removed. McElroy said he is ready to talk about what it would take to settle the case. Whether the lawsuit continues will depend upon negotiations between the federal government and the association now maintaining the memorial, he said.

The government's failure to sell the land at a reasonable value or to give up full control of the memorial and cross would be signals that the government is still violating the Constitution.

"I'm not saying a settlement can happen, but it's at least something worth talking about," McElroy said.

That's a bit further than he has gone in the past.  I suspect this one will shake out the same way that the Mojave Cross case did. 

I really wish the Supreme Court would come up with a better way of evaluating these claims.  If you aren't interested in Constitutional law you probably don't know this, but Freedom of Religion cases are notoriously....variable.  In fact, there were two cases that went to the Supremes on the same day dealing with 10 Commandments statues on public property on the same day, and they were both decided by a 5-4 margin.  And they went both ways.

The current standard, which sometimes is followed, and more often not is the "Lemon Test":

  1. The statute must not result in an "excessive government entanglement" with religious affairs. (also known as the Entanglement Prong)
  2. The statute must not advance or inhibit religious practice (also known as the Effect Prong)
  3. The statute must have a secular legislative purpose. (also known as the Purpose Prong)

But the Court often goes outside this reasoning and looks at "historicity" and other factors.  #3 is usually easy, because no legislator is stupid enough to pass a bill and not give a secular reason.  It's 1 & 2 that ALWAYS land these cases in court.

Anyway, kudos to Rep Hunter for his work on this, following on the work of his father, the previous Rep Hunter.




Posted in the burner | 3 comments
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The federal government should not be giving away any public property to private entities. In fairness to taxpayers and the citizenry as a whole, all excess public property should be sold to the highest bidder unless it is needed by another public entity (i.e. state, county, municipality, etc.). Otherwise, sweetheart deals will be going on all the time as politically-connected interests use their influence to get desired public domain turned over to them through the power of Congresspeople they helped put in office.

Since the MSMA has been maintaining this site for a long period of time, they should be the first party to be offered to buy the property or purchase it for a small amount. We people that have difference beliefs and see a cross standing are starting to have rights because of the atheists. Before long people will not be able to were a cross because of these people.

This whole situation is BULL SHIT ! This country was set up to be governed by the will of the people ! Not by the will of some SOB that wants everybody to fall into step with his will. That cross has nothing whatsoever to do with the separation of church and state . It is a memorial to our vets who have given the ultimate for their country no more and no less. If this idiot doesn`t like it as far as I`m concerned he can go p-- up a rope !!!!!!

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News from the World of Military and Veterans Issues. Iraq and A-Stan in parenthesis reflects that the author is currently deployed to that theater.