Federal Appeals Court to Examine Constitutionality of San Diego Monument

ACLJ Represents Members of Congress Seeking to Protect the Mount Soledad Veteran’s Memorial

WASHINGTON, March 13, 2009—"It's time to put this issue to rest.  It's been litigated for decades and now's the time to put a period on this case.  The Memorial is constitutional." - Jay Sekulow, chief counsel of the ACLJ 

A veteran's memorial in San Diego is once again the focus of attention in a drawn-out legal battle.  The nation's top conservative public interest law firm, the American Center for Law and Justice (ACLJ), filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit on behalf of 25 members of Congress asking the appeals court to uphold the constitutionality of the Mt. Soledad Veterans Memorial in San Diego.  At issue in the debate is the presence of a cross in the memorial.

 

"We're asking the federal appeals court to reach the only proper conclusion-that the Mt. Soledad Memorial is not only an appropriate symbol honoring military veterans, but it is constitutional as well," said Jay Sekulow, chief counsel of the ACLJ, which has been active for years in defending the constitutionality of the memorial and its cross.  "It's time to put this issue to rest.  It's been litigated for decades and now's the time to put a period on this case.  The memorial is constitutional.  We're hopeful the appeals court will conclude what most Americans understand and believe: that the Mt. Soledad Veterans Memorial is part of the historic landscape of San Diego and should not be removed."

 

The case, now before the Ninth Circuit, is an appeal from an Aug. 2008 decision in which U.S. District Court Judge Larry Alan Burns dismissed the latest lawsuit and ruled that the memorial could stay in place.  Judge Burns cited the ACLJ's legal argument put forth in its brief in his decision, noting the ACLJ argument that Congress acted properly when it cleared the way for the federal government to acquire the Mt. Soledad Veterans Memorial from the City of San Diego.

 

In his opinion, Judge Burns cited the ACLJ argument:  "Like all democratically-elected bodies, Congress has a great interest in giving effect to the will of the people on issues of public importance. The widespread support among San Diego voters for the federal government's operation of the Memorial cut across religious, political, and cultural lines. (Brief of Congressional Amici at 4:16-20.)"

 

In the amicus brief filed with the Ninth circuit, the ACLJ represents itself, 25 members of the 111^th U.S. Congress and Advocates for Faith and Freedom, and a California-based religious liberty law firm, which is serving as co-counsel in the case.

 

The ACLJ represents the following United States Representatives: Todd Akin, Gresham Barrett, Rob Bishop, Dan Burton, John Campbell, Eric Cantor, Michael Conaway, John Culberson, Virginia Foxx, Scott Garrett, Phil Gingrey, Louie Gohmert, Steve King, Jack Kingston, John Kline, Patrick McHenry, Mike McIntyre, Kenny Marchant, Gary Miller, Sue Myrick, Randy Neugebauer, Joseph Pitts, Dana Rohrabacher, Todd Tiahrt and Lynn Westmoreland.

 

The brief (posted at www.aclj.org) argues that the federal government's acquisition and operation of the Mt. Soledad Veterans Memorial-including its commemorative cross-is consistent with the Establishment Clause of the First Amendment.

 

The litigation involving the memorial display has been ongoing since the late 1980s.  The current case involves the Jewish War Veterans of the United States of America and several individuals represented by the American Civil Liberties Union, which brought the present lawsuit challenging Congress' taking of the Memorial and the presence of the cross on federal property under the Establishment Clause of the First Amendment.

 

In its brief filed at the Ninth circuit, the ACLJ argues that "[t]he Mount Soledad statute's text provides the most reliable indication of congressional intent and evidences several secular purposes for the federal government's acquisition and maintenance of the Mount Soledad Veterans Memorial, such as recognizing the service of veterans and effectuating the will of San Diego voters." The brief cited the ACLJ's recent victory before the Supreme Court of the United States in Pleasant Grove City v. Summum, 172 L. Ed. 2d 853 (2009), noting that "the Court rejected the notion that a monument accepted and displayed by the government must convey one, and only one, meaning (religious or otherwise)."

 

The ACLJ brief also explained that "the fact that religiously affiliated private organizations may support (or oppose) a particular legislative proposal has no bearing upon its primary purpose or effect if enacted into law. This argument would eviscerate the right of ministers and other religious Americans to participate in the legislative process. JWV's theory would require the invalidation of numerous statutes that religiously affiliated organizations actively supported, such as the ADA Amendments Act of 2008, which expanded the protections of the Americans with Disabilities Act of 1990. See P.L. 110-325, Sept. 25, 2008."

 

In recent years, the ACLJ has been active in defending the constitutionality of the monument at both the state and federal levels.  More than 170,000 Americans - including nearly 30,000 Californians, have signed on to the ACLJ Petition to Preserve the Mt. Soledad Veterans Memorial.

 

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice focuses on constitutional law and is based in Washington, D.C.  The ACLJ is online at www.aclj.org.  The ACLJ's online newsroom can be accessed at www.DeMossNews.com/aclj.

 

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