blog Time Hath Found Us: Idiot judge finds Mt. Soledad Cross unconstitutional

October 07, 2005

Idiot judge finds Mt. Soledad Cross unconstitutional

In a direct slap in the face of an overwhelming majority of voters, Superior Court Judge Patricia Yim Cowett has found Proposition "A", the save the Mt. Soledad War Memorial Cross measure, unconstitutional. Prop "A" was the initiative on San Diego's July 2005 special election to save the Mt. Soledad War Memorial Cross by transferring it to the U.S. Interior Department as a national veterans memorial which was approved by an astounding 76% of voters.

The day after the election, attorney James McElroy, whose client, atheist Philip Paulson, filed a lawsuit challenging the presence of the cross on city land in 1989, called the vote meaningless. "It still doesn't mean a damn thing," he said. "Voters should have never voted on it. It's a waste of taxpayers' money."

San Diego's has a preliminary report:
SAN DIEGO -- A Superior Court judge has just ruled that Proposition A is unconstitutional.

"The court hereby finds the ordinance placing Proposition A on the ballot and Proposition A unconstitutional, and therefore invalid and unenforceable. Maintenance of this Latin Cross as it is on the property in question, is found to be an unconstitutional preference of religion in violation of Artical I, Section 4, of the California Constitution, and the transfer of the memorial with the cross as its centerpiece to the federal government to save the cross as it is, where it is, is an unconstitutional aid to religion in violation of Artical XVI, Section 5, of the California Constitution."

I, for one, am outraged at this ridiculous ruling. Be sure that the Thomas Moore Law Center and others will not let this rest.

The text of the ruling is here (PDF file).
UPDATE: Bill at Daily Pundit linked to this post with his own commentary stating: "One of the biggest problems in approaching issues like these is trying to explain to people that the laws prescribed by the Constitution are not matters of majoritarian debate. In fact, the people have no direct role to play in voting on the Constitution at all, not even in a hypothetical Constitutional Convention, and certainly not in the amendment process. In fact, they never have had such a role."

Bill is, indeed, correct and it was not my intention to intimate that a vote trumps the constitution. The point is that in issues like these, it is equally incorrect to ascribe a hostility toward public religious expression to the constitution. After 16 years of litigation and much judge shopping, Paulson and McElroy continue to rely on finding "the right judge" to try advance their agenda. This is just the latest in a series of costly and divisive maneuvers that pair has foisted on the people of San Diego.