By Peter Ferrara
Suppose you are in a car accident. You file a claim with your insurance company, but inexplicably the company refuses to pay. So you hire an attorney and sue the insurance company. But the Judge rules against you, on the grounds that your attorney is a professed Christian.
Sounds nuts, but something similar to this happened recently in the increasingly bitter litigation war over the cross at the Mt. Soledad Veterans Memorial in San Diego.
In December 2004, the federal government enacted a statute providing for the Mt. Soledad Memorial to be transferred to the federal government, to be run as a memorial under the auspices of the NationalPark Service. Last summer, city residents approved the transfer in a referendum with 76 percent in favor.
But, last October, Judge Patricia Cowett of the state Superior Court in San Diego issued an injunction against the city prohibiting the transfer. The judge ruled that the transfer would amount to an unconstitutional establishment of religion. In her opinion, the judge explained her ruling in part as follows: “The City of San Diego associated Counsel Charles LiMandri to appear [in the Mt. Soledad case] as a Special Assistant to the City Attorney. The association of Charles LiMandri occurred after Mr. LiMandri initially appeared in this case and argued in favor of the constitutionality of Proposition A [regarding transfer of the Memorial property to the Federal government], both orally and in written amicus curiae briefing on behalf of the Thomas More Law Center and the San Diegans for the Mt. Soledad National War Memorial.”
The judge went on to explain why this is so ominous, quoting the website of the Thomas More Law Center, which states in part: “The Thomas More Law Center is … a law firm dedicated to the defense and promotion of the religious freedom of Christians…providing legal representation … to defend and protect Christians and their religious beliefs.”
Judge Cowett concluded as a result, “Further, Mr. LiMandri’s Association on behalf of the City Clerk and City of San Diego gives the clear appearance of fostering “an excessive government entanglement with religion” prohibited by the Establishment Clause of the U.S. Constitution….”
In other words, because the city accepted legal representation from an attorney who is a professed Christian and who works for a legal organization dedicated to protecting the rights of Christians, that in itself is evidence that transferring the Memorial property to the federal government is somehow an establishment of religion. I can testify from personal experience as theLegal Director of the American Civil Rights Union that the city attorney now refuses involvement with any legal group that may be perceived as friendly to Christians.
Judge Cowett would surely and quite rightly have suffered swift sanction for judicial misconduct if she had dismissed the Mt. Soledad case in her court on the grounds that the plaintiff is Jewish and that evidences that the suit is based on hostility to Christianity. But when she does essentially the same thing to a Christian attorney, no one raises a peep in protest.
This case is now on appeal, and the court there needs to firmly reject this apparent hostility to Christianity. The exclusion of people from public roles based on religion was actually one of the hallmarks of the establishments of religion that the framers sought to prohibit in the Constitution.
Moreover, the cross at Mt. Soledad was originally found unconstitutional under the California Constitution because at that time it was a stand-alone cross merely labeled a veterans memorial. Today, it is no longer a stand-alone cross but a feature of a comprehensive federal national veterans memorial. Moreover, because the transfer to the federal government is now provided for under federal statute, the California Constitution no longer applies under the Supremacy Clause of the U.S. Constitution.
Consequently, it is now time for the courts to end this legal crusade and let the settled will of the people prevail.
Peter Ferrara is legal director for the American Civil Rights Union and director of entitlement and budget policy for the Institute for Policy Innovation.