Friday, Aug. 25 2006 | The American Civil Liberties Union has officially stepped into the legal fight over the fate of the Mount Soledad Cross.
On Thursday, the ACLU announced that it had filed a lawsuit against the U.S. government on behalf of a Jewish War Veterans – a national nonprofit organization – and three local residents who claim the cross’ presence, as well as the recent transfer of the Mount Soledad Cross from the city to the federal government, are unconstitutional.
The suit contends that the transfer, which took place earlier this month after Congress and President Bush approved of seizing the property through eminent domain, violates a clause of the First Amendment that provides that “Congress shall make no law respecting an establishment of religion.”
“It’s just as unconstitutional for the federal government as it is for the city government to sponsor, subsidize and endorse a 43-foot tall Latin cross on government property,” said David Blair-Loy, legal director of the local ACLU. “The issue is not about religion, it’s about government. It’s really about protecting religious freedom, because whenever the government gets into the business of religion, that’s the beginning of the end of religious freedom.”
The ACLU’s suit is the most recent salvo in what has been up until now a 17-year legal battle between the city of San Diego and Philip Paulson, an atheist and Vietnam War veteran who successfully challenged the constitutionality of the cross under state law. The suit marks the first time that outside groups have officially entered the fray.
Several years ago, the ACLU filed an amicus brief in support of Paulson’s challenge but was never a party to the litigation, Blair-Loy said. The suit names Defense Secretary Donald Rumsfeld as the lone defendant because he oversees the Defense Department, which is now responsible for maintaining the cross.
Jewish War Veterans, which has three posts in San Diego County and tens of thousands of members nationwide, is the oldest active national veterans service association in America, according to the lawsuit.
The organization opposes the presence of the cross atop Mount Soledad because “veterans of all faiths have served and died and … It is an affront to non-Christian veterans for their service to be commemorated by a cross,” according to a statement on the organization’s website.
Charles LiMandri, the chief counsel for San Diegans for the Mount Soledad National War Memorial, a group that seeks to preserve the cross, said he was surprised and disappointed that a veterans group was supporting the ACLU because his group has traditionally enjoyed the support of such organizations.
“Up until now we thought the Jewish War Veterans were behind us,” said LiMandri. He later suggested that the ACLU recruited a Jewish group in hopes of influencing U.S. District Court Judge Barry Moskowitz, who will likely hear the case next month and who LiMandri believes is a practicing Jew.
In addition to the Jewish War Veterans, three local residents – Richard Smith, Minga Sagheb and Judith Copland – are also serving as plaintiffs.
None of the local plaintiffs could be reached for comment but Smith, a Jewish veteran who lives in La Jolla, “is discomfited by the presence of a sectarian religious symbol on public property. Specifically, he believes … that the message the Latin cross sends is that non-Christians like himself are not full members of the political community,” according to the suit.
Sagheb, Smith’s wife and Muslim, “objects to government sanctioning of religious displays, since she believes that the government should not favor one religion over another,” according to the suit.
Finally, Judith Copland, whose religious beliefs were not mentioned, “objects to government sanctioning of religious symbols,” according to the suit.
Phil Thalheimer, chairman of San Diegans for the Mount Soledad National War Memorial, a group that supports keeping the cross, said lawyers from the Justice Department informed him that they fully expected the ACLU to file suit. He said that he has heard that the group was looking for a Jewish organization to serve as plaintiff.
Thalheimer, also a Jew, accused the ACLU of trying to muddle the issue of the cross’ legitimacy as a war memorial by attempting to bring religion into the fray.
“They couldn’t have found a better couple to serve as the poster children,” he said of Sagheb and Smith. “It’s not a clear cut religious issue because it’s not about religion. It’s a war memorial.”
While Thalheimer may not consider it a religious issue, he said he sees the addition of Jewish plaintiffs as “kind of exciting.”
“One of the things I’m really most proud of about being Jewish is that we really value diversity,” he said. “I’ve been looking forward to actively having a debate on this in the Jewish community and maybe it’s finally coming.”
Jim McElroy, Paulson’s attorney, said he was aware of, but uninvolved, in the ACLU’s effort.
McElroy, who has already challenged the constitutionality of the transfer in federal court, said he expects the ACLU’s filing to be consolidated with his own. He said the interest of the Jewish veterans group and the ACLU will help add resources and credibility to his argument.
“I feel like little David fighting Goliath who has suddenly had an army march in behind him,” McElroy said.