Justice was again delayed by a San Diego county superior court judge who ruled Friday that the transfer of Cross and land around it atop Mt. Soledad in San Diego to a veteran's group was an "unconstitutional preference of the Christian religion to the exclusion of other religious and non-religious beliefs in violation of the No Preference Clause of the California Constitution."
Some quick background: The current Cross has been there since 1954, and was preceded in the same location by another Cross since 1913. In 1989, a local atheist began litigation to have the Cross removed, since it was on city-owned property. In 1991, a superior court judge held that the Cross, located on city property, violated the Separation clause of the US Constitution. Legal sparring has continued since that ruling, culminating with Prop A, which overwhelmingly passed last July by a 75% "yes" vote to transfer the Cross and the land on which it rests to a private veteran's group. Opponents filed legal challenges that judge Patricia Yim Cowett ruled to be unconstitutional.
This ruling makes no sense to me. Essentially, the judge held that the existence of the Cross, and it's transfer to a private group is unconstitutional. So the judge rules that the Cross on government property is unconstitutional, and the transfer of the Cross and land to a private entity is also unconstitutional. The only possible remedy then, would be to either move or destroy the Cross. What the judge failed to address, however, is the Free Exercise clause of the US Constitution. Every Easter, probably since 1913, various religious groups hold services at Mt. Soledad, and I would argue that to now deny them this opportunity would be a clear violation of the Free exercise clause.
As discussed in this space back in May of 2005, the Supreme Court has made very clear that the "wall of separation of church and state" is not a wall at all, but a fuzzy line. The government cannot promote NOR inhibit religion. By transferring the Cross, a now-historic part of San Diego, the government is certainly not promoting a religion. Since so many religious activities have occurred there by so many Christian sects for so many years, to argue that government has been somehow sponsoring or promoting religion is preposterous.
In fact, I would argue that by ordering the removal of the Cross, this judge is essentially promoting a form of religion, that form being atheism. If belief in a Higher Power is considered a religious faith, then an equally powerful argument can be made that the non-belief in a Higher Power is also a religion. To put it another way, a religious person believes in a Higher Power. An atheist does not. Neither position can be proven with facts or science; each requires faith in an idea.
I would therefore argue that to order the removal of the Cross is an unconstitutional promotion of a religion by government, that religion being atheism.
Wall of Separation
Separation of Church and State