Photo by Chris McConnell

Judge Larry Burns of the United States District Court of Southern California has rescued the Mt. Soledad cross (for the time being) from the clutches of the First Amendment's Establishment Clause. This represents the most substantial courtroom defeat in twenty years for those seeking to have the cross removed. Most residents of San Diego want the cross to remain -- though I suspect even more are simply exhausted by the "long and torturous legal history" leading up to this latest decision. On the other hand, the Mt. Soledad controversy has served as a fascinating backyard lesson in civics and Constitutional law.

I've got two dogs in this fight. I've never known Mt. Soledad without the cross, it pleases the eye and the heart says it belongs. But I also happen to think the First Amendment and the Establishment Clause are the primary reasons the United States is the Land of the Free -- a 43-foot cross on public land troubles the conscience and the mind. And so if ever a judge could muster up the wisdom of Solomon, one would hope it would be Judge Burns. The entire ruling is a fairly entertaining read -- but here are a few choice extracts from Judge Burns' opinion.

"What we see depends on what we look for."

Burns is referring to the plaintiffs who view the cross as an affront to the Establishment Clause. Judge Burns is a Bush appointee, a graduate of Point Loma University (Nazarene Church) and the University of San Diego Law School (Jesuit) -- handicappers might suspect this hometown boy might be interested in "seeing" a way to protect the cross. But this is probably unfair to Judge Burns, a highly respected jurist and the same man who threw the book at hometown hero, ardent cross supporter, former US Representative and convicted felon Randy "Duke" Cunningham.  

"The Latin cross is, to be sure, the preeminent symbol of Christianity, but it does not follow that the cross has no other meaning or significance. Depending on the context in which the cross is displayed it may evoke no particular religious impression at all."

This goes to the heart of the issue -- context is apparently everything for Burns. A 43-foot Latin cross surrounded by a modest, makeshift memorial strips the cross of its religious connotations -- for some. Unfortunately, "context" is no objective matter; it depends on who is "seeing" the context.  Another 20-year-old scandal comes to mind. The National Endowment for the Arts (NEA) and its bad-boy photographer Andres Serrano could have used a friend like Judge Burns to explain how religious symbols can take on new meanings depending on context. Instead, the infamous "Piss Christ" photo was used to gut the NEA budget. Former Presidential Candidate Rudolph Giuliani was blind to "context" in his attempt to shutter the Brooklyn Museum for exhibiting Chris Ofili's "Holy Virgin Mary," a Madonna constructed of elephant dung.

"A current example makes the point. Veterans for Peace is a national organization of military veterans who oppose the war in Iraq. Each weekend, the anti-war group organizes well-publicized exhibits on public beaches and in public parks erecting thousands of crosses to represent the number of U.S. military dead in Iraq ... In the anti-war context of the displays, the crosses alternatively symbolize the cost of war, sacrifice and honor, and repose in death -- specifically, military death. But the objective observer perceives no obvious or explicit religious message in the displays."

Whoops! Time for Judge Burns to take his clerk out to the woodshed. This is factually incorrect. The Veterans for Peace also display Jewish stars, the Muslim star and crescent, as well as the Latin cross -- varied religious markers for fallen believers.

"[In] assessing the Mt. Soledad memorial, the court must be mindful of its responsibility to avoid evincing hostility to religion. Because this responsibility is just as great as the duty to guard against advancing religion, the court should not indulge any presumption in favor of either retaining or removing the cross."

Flip Flop!? Judge Burns earlier asserted that the cross evoked no particular religious meaning at all. It would seem difficult to evince hostility toward a religious symbol that symbolizes no particular religious ideal.

"Visitors to Mt. Soledad are, after all, mere passerby ... free to ignore the memorial, or even to turn their backs, just as they are free to do when they disagree with any other form of government speech."

"The Mt. Soledad memorial is found far off the beaten path."

In the same sense that one does not usually tramp over other towering landmarks around the country like Mount Rushmore and The Statue of Liberty, yes, I suppose the Mt. Soledad cross is "off the beaten path."

Plaintiffs point out "all the additional features of the memorial (flagpole and flag, walls, plaques, bollards, paving stones) were added after a legal challenge to the presence of the cross was first brought in 1989. But Mt. Soledad did not become federal property until 2006, and by then all of the changes were in place. Whatever the reasons for changes made to the memorial by the Mt. Soledad Memorial Association and permitted by the City of San Diego beforehand, it is neither logical nor proper to impute the motivation for them after-the-fact to Congress."

In other words, the lawsuits that inspired the hasty "memorializing" of the cross are actually responsible for giving Congress the right to now declare the cross a secular veterans memorial. Atheists take heed: you're damned if you do and damned if you don't.

San Diegans agree about two things when it comes to La Jolla: the cross should stay and the seals should stay. Perhaps Solomon has spoken here. Judge Burns has opened the door for a double victory with his novel opinion. The well organized seal lovers might hold off the seal eviction if they follow the Mt. Soledad blueprint. First, we build a dredge-proof monument in the Children's Pool, we fend off lawsuits from seal haters and thereby improve our monument. Then we get Donna Frye to spearhead an effort to have President Obama exercise the increasingly long arm of eminent domain.