Criminal Justice News and VIews

Interesting items related to criminal justice

My Photo
Location: Scottsdale, Arizona, United States

I love teaching and sharing knowledge. The Internet is a free passage to an amazing amount of knowledge provided by some of the greatest minds of the day. MIT, Oxford and other universities are now sharing lecture notes with the public and allowing us to dip into the overflowing fonts of wisdom that abound. Yale is but one university that has put actual lectures on the web.

Wednesday, August 16, 2006

Which Constitution is more Protective - state or federal

Many people lose sight of the fact that a constitutional issue in a state court, as this originally was, is governed by the state constitution so long as it does not violate the U.S. Constitution. States have always had the right to provide their own citizens more rights. Texas, for example, gives Texans the right to jury trial in all cases not prohibited by statute.

Feds now control Mount Soledad cross site

Bush signs bill; biggest foe expects court ruling soon
By Dana Wilkie

August 15, 2006

WASHINGTON – With President Bush's signature on a bill that transfers the Mount Soledad cross to federal control, the 17-year parochial battle over the memorial could become a national cause for supporters and foes of religious symbols on public property.

In an Oval Office ceremony yesterday, the president signed a bill by three San Diego-area congressmen that immediately transfers the war memorial to the U.S. Defense Department in an effort to avoid a court-ordered removal of the cross, versions of which have towered over La Jolla on and off for nearly a century.

Bush was joined by supporters of the cross from San Diego and by the bill's chief architect, Rep. Duncan Hunter, R-Alpine.

“Today is a great day for America's veterans and the San Diego community,” said Hunter, whose bill passed the House July 19 with a 349-74 vote, and passed the Senate unanimously two weeks later.

“The president's endorsement of this legislation validates years of tireless work and sends a clear message that America appreciates and respects its military men and women,” Hunter said.

Even before Bush had put his pen to the legislation, a foe of the cross had gone to court to fight the congressional action. In federal District Court in San Diego on Thursday, the atheist who first sued in 1989 to remove the cross asked the court to void the congressional transfer from the city of San Diego.

“Am I disappointed that Bush and Congress are acting in such a foolish fashion when there are religious wars going on all over the world?” asked attorney James McElroy. “Yes I am.”

McElroy represents atheist Philip Paulson, who believes that a cross on public land amounts to an unconstitutional preference of the Christian religion over others.

McElroy said he expects a ruling from the court in September. “So this is not going to be a long, dragged-out process.”

The final approval of Congress' plan marks a new era in the long-running fight, which has been the subject of several lawsuits, local ballot measures, and U.S. Supreme Court intervention last month.

Now the future of the cross will likely rest on interpretations of the U.S. Constitution instead of the California Constitution.

Bush's action also places the cross on a long list of religious symbols and activities that have caused increasing disputes over the federal Constitution's establishment clause, constitutional experts say.

“Certainly within the last 20 years the friction has been rather intense,” said Patrick Garry, a University of South Dakota law professor and author of “Wrestling with God: The Courts' Tortuous Treatment of Religion.”

“The symbol itself oftentimes is quite irrelevant, but it becomes this sort of point of battle between larger forces.”

The first Soledad cross was built in 1913 and was featured in Easter sunrise services. The current cross, dedicated as a veterans' memorial, has stood there since 1954, replacing another cross that had fallen in a windstorm.

Those fighting to remove the cross say it's a Christian symbol and should not sit on public land atop a prominent hill.

They note that even historical maps refer to the monument as the “Mount Soledad Easter Cross.” The opponents' most recent victory came when a federal judge ordered the 29-foot cross removed by Aug. 1. But the order was put on hold by the U.S. Supreme Court.

“The president and Congress have no business intervening in this way in an ongoing legal proceeding,” said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State. “Today's action is an unwarranted, heavy-handed maneuver that undercuts the separation of church and state and the integrity of the judicial system.”

While Bush made no public statements after yesterday's signing, the White House has said that “judicial activism should not stand in the way of the people” and that “the people of San Diego have clearly expressed their desire to keep” the cross where it stands.

Last fall, 76 percent of San Diego voters approved a measure that would have donated the cross to the federal government, but which a judge said violated the state constitution.

In addition to Hunter, the president was joined in the brief ceremony by GOP Reps. Brian Bilbray of Carlsbad and Darrell Issa of Vista; Charles LiMandri, an attorney advising a group of cross supporters; Phil Thalheimer, chairman of San Diegans for the Mount Soledad National War Memorial; and William Kellogg, president of the Mount Soledad Memorial Association.

Hunter's legislation aims to preserve the cross by vesting title to the memorial in the federal government and having it administered by the Defense Department. The Mount Soledad Memorial Association would maintain it.

Mayor Jerry Sanders appeared at an afternoon news conference at the memorial to thank the president.

“Today's action allows our federal government to take the lead in preserving the integrity of the memorial against all those that would alter this key part of San Diego's history,” he said as he stood with City Councilman Jim Madaffer, the cross towering in the background.

Sanders said the next step for the city would be to work with the federal government, which will have one year to negotiate a fair market price for the property.

Sanders said he had no idea what the price would be and he laughed when someone asked him if he would take just one dollar.

Charlie Berwanger, attorney for the Mount Soledad Memorial Association, said the memorial land was transferred to the Defense Department immediately upon Bush's signature. But he said federal attorneys must still file a notice of condemnation proceedings in federal court in San Diego.

Constitutional experts say that secular organizations and religious conservatives have increasingly petitioned the courts to ascertain what the Founding Fathers intended when they wrote that “Congress shall make no law respecting an establishment of religion.”

The Supreme Court's 1947 ruling in Everson v. Board of Education established “for the first time this idea of a wall of separation between church and state, and the courts in the '50s and '60s and '70s began enforcing this,” said Garry, the South Dakota law professor.

While secularists tended to have the upper hand in the courts through this period, Garry said, religious conservatives sparked a backlash in the mid-1980s.

“Our litigation system is providing an arena for them to battle it out,” Garry said.

Roger Pilon, vice president for legal affairs with the libertarian think tank the Cato Institute, said the increasing number of court fights over religious symbols or activities in public places tends to reflect “a period of cultural warfare.”

Last year, a pair of 5-4 rulings by the Supreme Court in separate cases involving the Ten Commandments did not establish clear guidelines. The court found that a display inside a Kentucky courthouse was unconstitutional, but that a 6-foot granite monument outside the Texas Capitol was all right.

In the past six years alone, other legal clashes have involved other crosses on public land; prayers at football games in a Santa Fe, Texas, school district; religious gatherings at a New York school after hours; whether “In God We Trust” should be stamped on U.S. currency, and “under God” be included in the Pledge of Allegiance.

Staff writer Debbi Farr Baker contributed to this report.