by Jack Minor –
The American Civil Rights Union argues in an amicus brief submitted to the US Supreme Court for a new constitutional standard protecting religious freedom in a case involving a war memorial that has existed since the 1950’s.
The ACRU argues for a “Coercion Test” to be used which says that public religious expression only violates the Constitution’s prohibition against establishment of religion if it involves coercion.
ACRU General Counsel Peter Ferrara, author of the brief which asks the Court to accept a Writ of Certiorari to hear the case, explains that at the time of the adoption of the First Amendment, all the countries in Europe had “establishments of religion” or an official state church which oftentimes required through force of law mandatory church attendance and regular contributions to the institution.
These practices, and anything like them involving coercion in regard to religion, are what the framers meant to prohibit in adopting the Establishment Clause, for this is what an Establishment of Religion meant at the time,” Ferrara said. “They did not mean, however, to prohibit any voluntary, public, religious speech, or religious expression or symbolism, which do not involve any such coercion.”
The issue involves the Mt. Soledad Veterans Memorial Cross in San Diego which was erected in 1954 to honor soldiers who gave their lives in war.
The ACLU filed suit against the cross saying they are opposed to the government “endorsing, promoting, or financing religious symbols.” The organization says the cross should be removed and removed to a “religious site.”
The issue has been in and out of the courts since 1989. In 1994 in an attempt to resolve the issue the city attempted to sell the land to the Mt. Soledad Memorial Association, which was authorized by the city to erect and maintain the cross when it was first installed in 1952.
The federal courts invalidated the sale because it was intended to save the cross “from removal and/or destruction.”
Eventually the land was transferred to the federal government to maintain the cross. A federal district court upheld the government’s display of the cross in 2008. Last year, the Ninth Circuit Court of Appeals reversed the decision and ordered the cross removed.
The Ninth Circuit also ordered the removal of a cross honoring World War I veterans in the Mojave Desert. In a 5-4 ruling the United States Supreme Court stated that cross could remain.
The cross was in a remote area and was challenged after a single park employee said he was offended at seeing it on public land.
Other conservative groups have joined in to defend the cross. Liberty Institute has also asked the Supreme Court to also save the Mt. Soledad cross. Kelly Shackelford with the organization says it is vital that the high court turn back the attempt by the ACLU to destroy the cross.
“If this 29-foot cross here is unconstitutional, then there’s a 24-foot cross in Arlington Memorial Cemetery. Additionally, there’s the Argonne Cross and the Tomb of the Unknown Soldier that says ‘known but to God.’ There are literally crosses and Stars of David in every community of every state, and they would all be torn down or sandblasted off.”
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