Resisting Accommodation: The ACLU and Mount Soledad

A panel of the 9th Circuit of Appeals unanimously ruled this week that the Mount Soledad Cross, a memorial that now honors Korean War veterans and sits on federal land near San Diego, amounts to a violation of the Establishment Clause of the U.S. Constitution.

The issue of memorial crosses and other religious markers on land that is now or has been public property has been much on the mind of the judiciary lately. In fact, just last April, a closely divided Supreme Court ruled in the case of a memorial cross in the Mojave Desert that efforts by government to accommodate such displays rather than destroy them do not necessarily violate the First Amendment.

Each of the war memorial cross cases has involved a lengthy history of attempts by government and private parties to resolve the complaints—by a retired Catholic park ranger in the Mojave case and Jewish War Veterans represented by the ACLU in the Mount Soledad case—through modifications in ownership of the sites on which the memorials are located. In the Mojave case, where the cross was first erected in 1934, Congress sold the land to a private veterans group that now maintains the spare memorial (rendered even sparer after vandals stole the simple seven-foot cross last May). In the Mount Soledad case, after 21 years of litigation to date and multiple efforts by the city of San Diego to transfer some or all of the site to private hands, the memorial now sits on federal land that was acquired through a congressionally approved act of eminent domain, which resulted in its being designated a national war memorial.

Accommodation does not, however, seem to be in the lexicon of the ACLU. In the Mojave case, writing for the majority of the Supreme Court, Justice Anthony Kennedy deplored the lower court’s decision to nullify the entire land transfer to private hands



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