Attorney Rees Lloyd
July 25, 2015
Great news: The Mt. Soledad National Veterans Memorial in La Jolla, CA, has been purchased — and hopefully thereby saved "as it is, where it is," with Cross intact, for generations of Americans to come — by the non-profit Mt. Soledad Memorial Associattion from the federal Department of Defense.
The Memorial Association announced on Monday, July 21, 2015, that its purchase of the Memorial for $1.4-million was finalized on July 17. This effectively transferred ownership of the memorial site honoring veterans from "public land" under federal ownership to "private land" of the Association, a non-governmental, non-profit, private organization. The Association has maintained the Mt. Soledad Veterans Memorial since its founding in 1954 in conjunction with wartime veterans of American Legion La Jolla Post 275.
Originally established to honor Korean War Veterans, it was expanded to honor all veterans, especially those who gave their lives in defense of American freedom. The Memorial is on land originally owned by the City of San Diego, which was transferred to the federal DOD in 2006. It now has some 3,500 plaques on tiered walls beneath a 29-foot cross honoring all veterans atop Mt. Soledad. (See, www.soledadmemorial.com.)
The secular extremist American Civil Liberties Union (ACLU) has been suing for some twenty-six (26) years now to destroy the Mt. Soledad Memorial on the basis that the Cross honoring veterans there has been on "public land" and, therefore, violates the Establishment of Religion Clause of the First Amendment. However, it is now on "private land." That has an enormous impact on the ACLU's lawsuit, which is again pending in the Ninth Circuit Court of Appeal.
The DOD was authorized to sell the Memorial to the Association by the National Defense Act of 2015, adopted by House and Senate and signed by President of Obama last December.
That legislation was the result of a bill initiated by Congressman Duncan Hunter, former U.S. Marine combat veteran who represents the District and who has led the effort in Congress to save the memorial.
In 2010, the U.S. Supreme Court ruled against the ACLU in the similar case of Buono vs. Salazar, commonly known as the Mojave Desert Veterans Memorial Cross Case. There, the ACLU sued in 2002 to destroy a veterans memorial established by VFW members to honor WWI veterans in 1934. ACLU sued because it included a cross on a rock outcrop on federal land in the remote Mojave Desert Preserve. ACLU sued even though there was no complaint in some 70 years, and the Cross was twelve miles off the highway and a person had to drive to it to be offended by it.
After the Ninth Circuit Court of Appeal ordered the the Mojave Cross had to be destroyed, Congress voted to exchange that one-acre site for five acres of private land donated by Henry and Wanda Sandoz, who had cared for the memorial for decades. Since the Cross was now on private land, the Supreme Court nullified the 9th Circuit decision that the Establishment Clause was violated and remanded the case. ACLU finally surrendered on remand in 2012, announcing in court it would cease attempting to destroy the cross.
While there is no way to know to a certainty whether the ACLU will finally cease its quarter-century of litigation to destroy the Mt. Soledad Memorial now that it is on private land, the Association, and those public interest law firms who have been representing veterans against the ACLU's lawsuits, have hailed implementation of Duncan Hunter's land-transfer legislation as signaling that the memorial will at last remain "as it is, where it is" without further successful litigation molestation by the ACLU.
Bruce Bailey, President and CEO of the Mt. Soledad Memorial Association board of trustees, said: "I am honored to be leading our Association at this most significant time in our Memorial's history. It marks for the first time where our membership can manage the Memorial's affairs from a place of ownership and accountability for the property, which is a new and welcomed step for the Association."
Reacting to the news of the transfer to the Association of the Mt. Soledad Memorial originally founded by the local American Legion La Jolla Post 275 more than a half-century ago, American Legion National Commander Michael D. Helm said he hoped it would end the litigation attacks of the ACLU.
"Frankly, it shouldn't have been necessary for the government to sell the land to a private group in order to preserve a memorial that is deeply significant to so many people. The American Legion believes in 'God and Country'. Unfortunately, some courts don't always see it that way," Commander Helm said. (For the full response of the American Legion, the nation's largest veterans organization, (see this link.)
Liberty Institute, based in Texas, represents the Memorial Association against the ACLU in the present Mt. Soledad case pending in the 9th Circuit. LI issued a statement that "after a 25-year legal battle, the Mt. Soledad Veterans Memorial is finally saved…[it] ends a legaal dispute regarding the constitutionality of the memorial on government land."
Hiram Sasser, Liberty Institute's Deputy Chief Counsel, said: "The Mt. Soledad Veterans Memorial Cross has stood since 1954 as a symbol of the selfless sacrifice of our nation's veterans. Such a sacred memorial should receive our highest honor and protection. Today's actions will ensure that the memorial will continue to stand in honor of our veterans for decades to come. This is a great victory for the veterans who originally placed this memorial and the Korean War veterans the memorial honors. We thank our lead counsel, Allyson Ho, and her team at Morgan, Lewis & Bockius, who worked tirelessly to defend the memorial, leading to this ultimate victory." (For more information on Liberty Institute. (For more information, www.LibertyInstitute.org.)
Charles S. LiMandri, President and Chief Counsel for the Freedom of Conscience Defense Fund (FCDF), has actively participated in efforts to maintain the Memorial Cross "as it is, where it is" since 2004. The FCDF, along with Attorney Peter Lepiscopo, represents Congressman Duncan Hunter.
LiMandri, who has been credited with doing more than any other single person to save the Mt. Soledad Cross, said of the Memorial's transfer to the Association: "We are delighted that the longest running religious liberty case is coming to a successful conclusion after 26 years. Any future legal challenge to the transfer of the Memorial property from the federal government to the Memorial Association is likely to fail in light of the U.S. Supreme Court's ruling in Salazar v. Buono, 559 U.S. 700 (2010), which approved trade of federal property to private ownership for the purpose of preserving the Mojave Memorial Cross. The Freedom of Conscience Defense Fund extends its hearty congratulations to the Memorial Association and its counsel." (For more on FCDF, see www.ConscienceDefense.org.)
Joseph Infranco is Senior Counsel of the Alliance Defending Freedom (ADF), and co-founder, with me, of the Defense of Veterans Memorials Project of The American Legion Dept. of California and the Alliance Defending Freedom.
He said of the transfer of Mt. Soledad to the Memorial Association: "Monuments that honor the very people who have fought and died to protect our freedoms should be preserved in the best possible way. Though perhaps understandable, it's unfortunate that Congress felt forced to take the safe route of a land transfer to protect this cherished memorial. Memorial crosses on government land honoring those who served and died are not an establishment of religion any more than the memorial crosses that grace Arlington National Cemetery. Nonetheless, all should take some comfort that the Mount Soledad Memorial will be well cared for and free from the illegitimate attacks of those who have sought to uproot it. We trust that this move will allow the memorial and its cross to be enjoyed and revered for generations to come." (For more on ADF, see www.adflegal.com)
Our Defense of Veterans Memorials Project was created, and first became involved in litigation combatting the ACLU in 2006 when a U.S. District Court ordered the City of San Diego to destroy the Mt. Soledad Cross within 90-days or it would impose a fine of $5,000 per day. We entered the litigation to support Attorney Chuck LiMandri who at the time was carrying the legal battle against ACLU almost alone.
To the shock of most in the legal community, the U.S. Supreme Court issued a stay order preventing destruction of the Cross after the Ninth Circuit had denied a stay order pending appeal.
The Memorial was saved at the time by passage of the Mt. Soledad National War Memorial Protection Act of 2006, which transferred Mt. Soledad from the City of San Diego to the federal DOD. This effectively nullified the U.S. District Court's destruction order, since that case was tried under the California Constitution, not the U.S. Constitution. That Mt. Soledad Protection Act passed the House overwhelmingly, and the U.S. Senate without objection, including no objection by then Sen. Barack Obama.
Then-President George W. Bush signed the Mt. Soledad Protection Act into law. Attorney Charles LiMandri, because of his singular and remarkable pro bono efforts to save the Cross was invited by President Bush to attend the signing ceremony.
Now, with the Mt. Soledad Memorial again facing destruction by the ACLU's lawsuit, Rep. Duncan Hunter, a combat Marine, has led the effort in Congress to authorize a transfer of Mt. Soledad by sale into the private hands of the Memorial Association, as Congress did in the Mojave Desert Veterans Memorial Cross case (Buono vs.Salazar).
This may or may not deter the ACLU in its secular-cleansing, cross-destroying fanaticism, even to the point of attacking veterans memorials. If it does not, those who have fought to preserve Mt. Soledad will continue to fight, as long as it takes, to prevent the desecration of it or any veterans memorials by intolerant extremists epitomized by the ACLU, which, in my opinion, has become the Taliban of American liberal secularism.
As co-founder with Joe Infranco of the Defense of Veterans Memorials Project, I thank Joe Infranco and all at ADF; Hiram Sasser, Kelly Schackleford, and all at Liberty Institute; Chuck LiMandri and all at Freedom of Conscience Defense Fund; Attorney Pete Lepiscopo; Congressman Duncan Hunter; and all of who have fought so long and so hard to save Mt. Soledad Veterans Memorial "as it is, where it is," and as it was intended to be by the American veterans who founded it to honor their comrade veterans.
This thanks includes American Legionnaires in California who have continued to fight against the ACLU. They have, among other things, established plaques at Mt. Soledad honoring Maj. General Patrick H. Brady (USA, ret., Medal of Honor, Vietnam); Admiral Jeremiah A. Denton (USN, ret.; Navy Cross, POW for seven years/seven months in Vietnam); Legendary Legionnaires Leo Burke (USMC, WWII), and Robert J. "Uncle Bobby" Castillo (USN, WWII); and, on February 3, 2014, the Immortal Four Chaplains. (See, attached photo of California Legionnaires at Four Chaplains ceremonies beneath the Cross at Mt. Soledad, joined by former Navy Seal Larry Wilske (ret.), now Executive Secretary of the Mt. Soledad Memorial Association.)
I thank them all for fighting as Patton taught—"Audacity, Audacity, Always Audacity;" and staying the course as Churchill taught:—"Never give up. Never, never, never give up."
As veterans, and as patriots, we must not, we will not, allow desecration of memorials honoring veterans, no matter how offensive those memorials may be to enemies of America, foreign or domestic.
FOR GOD AND COUNTRY FOREVER; SURRENDER TO THE ACLU--NEVER!