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Tear down that wall!

Religious Liberty | Faith-based law firms gain clout and a milestone: 25 years of battling misperceptions about a constitutional "wall of separation" between secular and religious life

Issue: "Katrina: One year later," Aug. 26, 2006

SAN DIEGO - From atop Mt. Soledad, visitors on clear Southern California days look out at the horizon and marvel at how the Pacific Ocean meets the sky in a seamless blue kiss. But for church-state separationists the charm ends there: They find offensive the 43-foot Latin cross that rises from the center of Mt. Soledad's publicly owned peak. For 17 years, ACLU-backed attorney James McElroy and the City of San Diego have debated in court whether the cross is part of a war memorial that should be preserved or a state-established "Easter Cross" that should be torn down.

Those advocating destruction might have had their way not too long ago. But Christian religious-liberty legal groups have changed that. In 2004, the Ann Arbor-based Thomas More Law Center learned that San Diego officials were on the verge of settling the marathon case and offered to intervene.

After a series of fresh skirmishes-including a referendum in which 76 percent of San Diego voters said the cross should stay-a federal judge this May dealt what seemed a final defeat, ordering that the city remove the cross or face fines of $5,000 a day. In June, the 9th U.S. Circuit Court of Appeals upheld the order and the San Diego City Council seemed sapped of its will to fight.

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But a last-ditch flurry of legal, legislative, and media maneuvering turned the battle. The Thomas More Law Center urged the city to appeal to the U.S. Supreme Court. Via e-mail and talk radio, the Virginia-based American Center for Law and Justice (ACLJ) and other Christian public-interest litigators mobilized protest. Fox News and conservative talk-radio hosts interviewed ACLJ chief counsel Jay Sekulow and others, raising the case's profile nationally.

The all-out counteroffensive paid off: The San Diego City Council voted 5-3 to appeal to the U.S. Supreme Court for a stay of the federal court's removal order. On behalf of 22 members of Congress, the ACLJ filed an amicus brief arguing for the stay. And on July 3, Justice Anthony Kennedy complied, ordering California courts to allow the cross to remain in place pending related litigation, including a possible Supreme Court appeal. Then on July 19, the U.S. House passed a law that would enable the city to transfer to the federal government ownership of the land underlying the Mt. Soledad monument.

Though the cross's final fate is still in flux, its survival thus far is one symbol of the strength of the Christian religious-liberty legal movement that this month enters its 25th year. The movement's roster today includes such national heavy-hitters as the ACLJ and The Rutherford Institute (Virginia), Liberty Counsel (Florida), the American Family Association Center for Law and Policy (Mississippi), the Becket Fund for Religious Liberty (Washington, D.C.), and the Alliance Defense Fund (Arizona). Smaller groups, such as the Sacramento-based Pacific Justice Institute, take on some high-profile cases but concentrate on regional work.

All are organized as nonprofits funded by charitable donations and offer legal assistance pro bono, or free of charge. Since 1982, they have with mounting success litigated for the First Amendment rights to religious speech, association, exercise, and equal access in arenas from public schools to land use to the workplace.

The first U.S. Congress probably would have approved. That body of legislators-the same men who adopted the First Amendment-in 1787 passed legislation that declared in part: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools, and the means of education, shall forever be encouraged."

Over the next 100-plus years, public officials encouraged those virtues without endorsing a particular religion. But in 1920, Roger Baldwin co-founded the American Civil Liberties Union, which for the next half-century worked alongside others to reshape First Amendment law to fit a new view: Government must not encourage even in the most general way any belief in God. The result was a systematic attempt at chiseling Christianity out of public life:

  • In 1925, the ACLU lost in court the Scopes "monkey" trial, but press accounts ridiculing the creationist side elevated the "science" of Creator-free evolution over the "fairy tale" of faith.
  • In 1947, the Supreme Court ruling in Everson v. Board of Education of Ewing quoted Thomas Jefferson's famous phrase "wall of separation between church and state," ratifying it as the essence of the First Amendment's establishment clause.
  • In 1948, the high court in McCollum v. Board of Education held that voluntary religious activity at public schools was unconstitutional, quoting Jefferson's "wall" dictum again, this time as constitutional precedent.
  • 1963, the Supreme Court struck down public-school prayer.
  • In 1971, the court established the widely criticized "Lemon test" which prescribed for the state a strict secularism.

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