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| The Mount Soledad Cross |
This week
a judge ordered a veteran's memorial removed from a hill top in San Diego, stating that the memorial, a Christian cross, violates the "separation of church and state." The current cross was erected in 1954, though a cross has stood on this spot for 100 years, the first being erected in 1913.
At first I thought this was a slam-dunk bad (as in illegal, unconstitutional) decision by the judge. After looking into it, I see that it's not that clear, though I still disagree with the judge. His decision was not slam-dunk bad, just plan old bad.
Federal courts have often strayed far beyond the boundaries of the Constitution in finding religious displays "unconstitutional." If they relied solely on the First Amendment to the Constitution, they would likely not make such decisions. The First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Note that the Amendment says that CONGRESS shall make no law respecting an establishment of religion. Individual states could, and did, make all kinds of laws establishing religion, and such laws were perfectly constitutional. This was the
original intent of the First Amendment. (I personally would prefer that no state establish any "official" religions, but my personal preferences should not supersede the Bill of Rights.) In any case, the words "separation of church and state" do not appear anywhere in the Constitution.
Since the First Amendment was added to the Constitution, however, federal courts have often gone off the reservation by declaring any and all public displays of a religious nature to be "unconstitutional," particularly if they occur in schools, government buildings, government lands, i.e., the public square. It is really stretching it to claim that a display of a creche somewhere downtown constitutes a Congressional "law establishing religion." It would appear that prohibition of such displays is a violation of the First Amendment "by prohibiting the free exercise thereof." Federal law does not govern such displays; they are governed by state law only, per the original intent of the Founders.
These overboard court decisions rely on
Stare Decisis ("Let the Decision Stand"), merely repeating what earlier courts have ruled, a legality known as
precedence. If one Federal court makes a bad ruling that is not reversed on appeal, the bad decision stands. It's called "case law," as opposed to legislated ("statutory") law. One bad judicial ruling can therefore give birth to countless other bad rulings, like a feral cat dropping litters of mangy kittens.
The Mount Soledad cross was originally erected on state land, but at some point the land was transferred to federal ownership. Okay, does federal ownership of the land somehow make the cross a "Congressional establishment of religion"? Many federal courts have replied in the affirmative -- that any religious symbol is unconstitutional if erected on government owned land. This belief goes beyond the plain language and original intent of the First Amendment, but has been reinforced through bad precedence.
Plans are being made to transfer the land to state or private ownership, which would apparently remove all doubt -- or would it? If the land is state owned, there is still a problem because California's state constitution has its own "No Preference Clause" which prohibits the display of religious symbols on state-owned land.
In order to be privately owned, the land would have to be offered for sale to the highest bidder, regardless of their religious persuasion, and the new owners not obligated to keep the cross.
Read more about it here.
