Summary
[...] the Ninth Circuit incorrectly interpreted California state law with respect to state-sanctioned religious preference and religious aid. [...] the Note concludes by discussing recent decisions in the field and suggests an approach to dealing with similar, inevitable future cases.
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Extract
Separationism to the Extreme: The Mt. Soledad Cross and the Ninth Circuit's Crusade to Burden the Free Exercise Clause
INTRODUCTION
The morning transit southbound on Interstate Five or a leisurely drive through the gUttering streets of La Jolla reveal to the keen observer a prominent and unmistakable symbol of religious faith. To be sure, the object of attention drawing accolade, criticism, and legal consternation alike is a highly contentious Latin cross. Standing fortythree feet tall,1 atop a bluff of 822 feet,2 the Mt. Soledad Cross serves as a veterans' memorial, icon of faith, and controversial symbol of government endorsement of religion. Despite the varied array of opinions elicited by the existence of the twentyfour ton reinforced concrete religious structure,3 on once public property,4 the builder of the cross holds the enhancement and preservation of the memorial, and education of the public to the sacrifices of veterans in preserving American freedoms, as its mission.5 Although the present cross was erected in 1954, its predecessors date to 1913, making it a well-known landmark in San Diego County.6 Despite the cross's long history, however, it has not always received favorable attention. For nearly the last twenty years, the cross has been a matter of intense debate; namely a long and costly legal battle initiated by an offended atheist and U.S. Army veteran, Philip Paulson.7During the extensive litigation many decisions held in Paulson's favor, seemingly tolling the death knell for the cross's continued existence on Mt. Soledad.8 While most of the judgments rested on sound, well-articulated legal principles,9 the Ninth Circuit' s holdings have left constitutionally questionable repercussions in their wake. 10 Particularly, the ramifications on the free exercise rights of the cross's owner, the Mt. Soledad Memorial Association (MSMA), as a result of the court's ruling that the sale of the city property beneath the cross to the MSMA constituted impermissible state aid to a religious organization.11 To be sure, it is not argued, nor has it been in seventeen years, that it would be constitutional the MSMA to maintain a sectarian symbol atop the city property. 12 The issue was never addressed, however, as to whether the Ninth Circuit's prohibition of selling the property to the MSMA, in an open and objective bidding process, mfringed on the organization's right to participate in public discussion and demonstrate its faith. This Note seeks to examine the protracted litigation surrounding the Mt. Soledad Cross and the Ninth Circuit's persistent refusal to allow the MSMA to compete in the marketplace of expression on Mt. Soledad. In short, this Note argues two main points. First, the Ninth Circuit incorrectly interpreted California state law with respect to state-sanctioned religious preference and religious aid. And, second, in doing so, the Ninth Circuit neglected to consider the free exercise rami...See the full content of this document
(Copyright 2011)
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