FOX News - Hannity & Colmes - Jay Sekulow Debates Court Order to Remove Mt. Soledad Cross in San Diego

May 10, 2006

FOX News - Hannity & Colmes 

Judge Orders San Diego War Memorial Removed

ALAN COLMES: Welcome back to "Hannity & Colmes."

Since 1954 the 29-foot-high cross of the -- of Mount Soledad Veterans Memorial has towered over San Diego, California, but the cross has also been at the center of a First Amendment battle because the memorial sits on city property.

On Wednesday a federal judge give the city 90 days to take down the cross or start paying $5,000 a day in fines.

Joining us now are the chief counsel for the American Center for Law and Justice, Jay Sekulow, and civil rights attorney Michael Gross.

Let me -- Jay, let me begin with you.

JAY SEKULOW, AMERICAN CENTER FOR LAW AND JUSTICE: Hi.

COLMES: This is all about the California constitution -- welcome back to our show, Jay -- which talks about no preference clause, which prohibits religious symbols on public land. It's that simple.

SEKULOW: Well, it's not that simple, because it's been subject to litigation that has been going on for 15 years.

COLMES: And they keep losing.

SEKULOW: And the idea that a war memorial would be somehow off limits or illegal because it contains a religious symbol, here a cross, that same kind of logic would apply to the Arlington National Cemetery, which is primarily crosses and stars of David.

COLMES: Well, the operative issue here is the California constitution. And let me ask you this...

SEKULOW: The California constitution is not interpreted to void religious symbolism in American public life.

COLMES: Well, every court, and there have been about nine decisions now, which has not gone your way. But let me ask you this. This cross part of a war memorial that memorializes men and women who died defending our freedoms. Not all those people may subscribe to what that cross represents. So why would that cross even be appropriate, given the religious adversity that many have?

SEKULOW: It's the same reason you see the cross as a symbol in Normandy and the beaches and in other war areas where there's memorials set up. The cross in a sense has become a universal symbol in that regard.

Those that would object to the cross -- and by the way, we've received calls from members of the Jewish faith and others that said, "Look, we all understand this is a war memorial. It's not the city saying Christianity is the only official recognition of our city."

What's, I think, disturbing here is that if you look at the symbolism that's involved -- this is, as you said, a war memorial. And the fact that it contains a religious reference here, a cross, makes it all of a sudden illegal under either the state of California's constitution or the U.S. Constitution, I just think is ridiculous.

COLMES: Let me -- let me go to Michael Gross here. You know, I keep hearing conservatives talk about rule of law and upholding the Constitution and wanting constitutionalists on courts and how liberal judges are rewriting the Constitution. But when it turns this way on their turf, all of a sudden they don't want to defend the Constitution.

MICHAEL GROSS, CIVIL RIGHTS ATTORNEY: Nobody has disagreed with this: 44 judges over 15 years, not a single dissent. Summary judgment here. This was a slam-dunk breach in the wall of separation between church and state.

SEAN HANNITY: Mr. Gross -- Mr. Gross, I know you intolerant liberals have a hard time showing any tolerance for anything other than your own views. But, you know, should we take...

GROSS: I'm wondering what you would think of it...

HANNITY: Can I finish? Can we finish? Should we take down the crosses at Arlington and the stars of David?

GROSS: You interrupted me.

HANNITY: I'm asking you. Should we take down the crosses and the stars of David at Arlington?

GROSS: If you had...

HANNITY: Yes or no? It's on government property.

GROSS: You don't have crosses and stars of David here. You have one religious symbol.

HANNITY: OK, if it was the Star of David would that make you happy?

GROSS: It would if you could...

SEKULOW: Would that make it constitutional if you could add...?

GROSS: Just a moment. You know, I was asked not to interrupt. It was a Korea War victim who was the plaintiff in this case and he's represented by Catholic lawyer.

HANNITY: I didn't ask you that. I asked you a specific question.

GROSS: I'm going to tell you.

HANNITY: Crosses down or not in Arlington?

GROSS: This is as you have said, a lot of times, you want to put up pictures, you want to put up crosses, you want to...

HANNITY: You can get as angry as you want and as loud as you want, but I'm going to ask you the question again.

GROSS: Don't do it on public money. Don't do it on public land.

HANNITY: So take the crosses out of Arlington?

SEKULOW: Arlington Memorial.

GROSS: What does that have to do with that?

HANNITY: Yes or no? They're on public land. Should we take them...

SEKULOW: Well...

HANNITY: Hang on, Jay. Take the crosses down on Arlington or not, yes or no?

GROSS: Of course not. Listen to me.

HANNITY: Public land. Your own position.

GROSS: Listen to me for a moment. You drive towards La Jolla, which is the part of San Diego where this is, and this is like coming into Rio. This is Christian land. This is what this is.

SEKULOW: Oh, you know...

HANNITY: Hang on.

GROSS: This is visible for miles and miles.

HANNITY: Jay, hang on.

GROSS: The city council has pulled sham after sham to avoid the First Amendment.

HANNITY: Hang on. Relax, calm down.

GROSS: What happened to the Constitution?

HANNITY: Go ahead, Jay.

GROSS: Do you believe in separation of church and state or not?

SEKULOW: Well, look, you come into Arlington Memorial National Cemetery, national cemetery, it's federal land, you see crosses and stars of David.

GROSS: There's no Stars of David in this...

SEKULOW: That's part of our history. It's part of our heritage.

GROSS: There aren't any Muslim symbols.

SEKULOW: Of course, this is the -- this is the Ninth Circuit Court of Appeals. And you could -- and there's 24 judges there.

GROSS: And turned down by the...

HANNITY: Let him finish, please.

(CROSSTALK)

SEKULOW: Three years ago it was turned down by the Supreme Court of the United States.

GROSS: For 15 years you've been ordered to take it down.

(CROSSTALK)

SEKULOW: There are still appeals -- you could yell. There are appeals in the state courts right now. This case is not over.

GROSS: You have pulled shams to avoid the law.

COLMES: We've got to split. We've got to move on.

GROSS: And I'm shocked that you would, you would.

COLMES: We thank you both.