Mount Soledad Case Review Denied
The Mount Soledad war memorial cross in San Diego has been previously ruled as unconstitutional, violating the Establishment Clause. The 9th Circuit Court of Appeals recently refused to rehear the case or grant an en banc review. Notably, however, 5 of the 11 judges dissented in the denial of an en banc rehearing. The premise of their dissent was that the court had inappropriatelly analyzed the memorial:
The [original] panel concentrated its analysis on the history of the Cross as a religious symbol. Not on how this Cross at Mt. Soledad has been used by this government, but on the cross in general…
It’s a fascinating and illuminating observation from a significant number of judges in the generally “liberal” court. In essence, they assert the court judged the religiosity of the symbol, rather than on what the government did with the symbol.
Of course, the US Constitution says Congress cannot make a law “respecting an establishment of religion.” It says nothing about association of the government with war memorials with religious symbols.
The logic — or illogic — of this construct similarly applies to some accusations of religiosity in the military, where the mere association of the two — absent any other facts — is sufficient for some to call for the restriction of free exercise by members of the US military. For example, critics of religious freedom have said military members participating in worship services of their choosing — a human liberty protected by the Constitution — have “advanc[ed] the cause” of the enemy and convinced “the Muslims we’re on a crusade.”
Some members of the 9th Circuit saw the “defect” of the Court’s ruling, essentially analyzing a religion rather than the government. Likewise, there are a great many “defects” in calls to restrict religious freedom in the military. Religious freedom remains a protected freedom in American society, even within the military that fights to protect it.
Via the Religion Clause.