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commentary
The cross and the First Amendment
Published Thursday, 14-Jul-2005 in issue 916
BEYOND THE BRIEFS: sex, politics and law
by Robert DeKoven
Imagine that a majority of Muslim Americans dominate the U.S. Congress and all state legislatures. They pass laws changing the inscription on the currency to read “In Mohammed We Trust.” They change the pledge of Allegiance to “One Nation under Mohammed.” Mosques replace churches on public land. Schools require daily reading of the Koran, and, instead of holidays for Christian occasions, the government replaces them with days off for Ramadan.
If any of these things happened, no doubt there would be fury, and many would cry “What about the First Amendment? What about separation of Church and State? We live in a democracy, not a theocracy.” This is the example I often use to help people understand the purpose behind the First Amendment’s dictate against a government establishment, endorsement or entanglement with religion. It is a bit ironic that American soldiers, after fighting against the theocracy in Afghanistan, come home to find our nation and San Diego embroiled over the mixing of religion, politics and law.
Locally, it’s whether the city of San Diego or the federal government can support a cross atop Mt. Soledad, a war memorial to honor all who have served and died in wars. While the cross represents the religious views of the majority of Americans who died, it hardly represents the non-Christians and the non-believers.
Legally, as the Supreme Court ruled in the so-called “Ten Commandments cases,” a religious symbol standing alone on public property violates the First Amendment. A few months ago, City Attorney Mike Aguirre convened a forum about the cross. Proponents for keeping the cross on public property argued that the Supreme Court would junk past cases and deliver a new standard that would save the cross. That didn’t happen. And Mike Aguirre indicated recently that, regardless of the outcome of the election, the cross would not survive in litigation.
Originally, the cross was erected in honor of those veterans who served in the Korean War, and now it covers veterans of all wars. But the problem is that the cross is the only religious symbol at the memorial. The U.S. is a religiously pluralistic society, with thousands of different faiths. So proponents say that other religious faiths should put up their symbols. But if every religious group wanted to show symbols at the memorial, there wouldn’t be enough space there or anywhere in San Diego.
“… [City Attorney] Mike Aguirre indicated recently that, regardless of the outcome of the election, the cross would not survive in litigation.”
In a recent book called G.I. Jews, the author chronicles the untold story of a half-million Jewish men and women who served in the U.S. military during World War II. Most enlisted because Hitler was not just a threat to Jewish people in Europe, but was threat to all living in freedom everywhere.
Many of those Jews volunteered for the most ruthless and dangerous assignments, such as serving as landing forces on the shores of Normandy. This was a suicide mission, as thousands of men lost their lives trying to overpower German forces. And, as prisoners of war, Jewish soldiers faced certain death. In fact, in the last days of the war, Hitler instructed his forces to kill Jewish soldiers.
But, ironically, like the gay or lesbian soldier today, the G.I. Jew faced bias from the U.S. military. Some soldiers expressed open hostility to Jews. They didn’t want to live with them, shower with them, or fight with them. In fact, military officials wondered if they could have separate units for Jews, just like they did for African-Americans.
On another front, U.S. Jews, much like gays today, were fighting hatred at home, as anti-Semitism in the U.S. was very strong. In fact, Charles Lindbergh, while he was setting flying records, warned Americans to let Germany handle its “Jewish problem” on its own and not get involved in stopping Hitler. La Jolla, home to the cross, had deed restrictions prohibiting the sale of homes to, among other groups, Jews.
Across the world, meanwhile, millions of Jews perished in death camps. History is replete with stories of struggles by those individuals to fight in their own way. There is no doubt that, had Hitler forced the 10 million people he killed into forced labor (and saved Germany the expense of the “final solution”), he most certainly would have won World War II.
But I am not advocating here that the cross atop Mt. Soledad be joined by another religious symbol, as some of the proponents have urged. Rather, I hope the cross moves a few yards away to its rightful place on religiously-owned land. In its place atop Mt. Soledad should be a replica of the one symbol that unites Americans in our fight to preserve freedom: the U.S. Constitution. At a minimum, shouldn’t the cross be accompanied by religious symbols of those non-Christian and nonbelievers who died trying to preserve the Constitution?
Robert DeKoven is a professor at California Western School of Law.
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