9th Circuit: Mt. Soledad Cross Unconstitutional

A three judge panel of the 9th Circuit Court of Appeals ruled that a 43 foot cross on Mt. Soledad in San Diego violates the Establishment Clause. Full ruling here (PDF). I believe this is the case in which Peter Irons was the original attorney for the plaintiff. The case has been going for about 20 years now and the plaintiff is now the Jewish Veterans of America.

There's been a lot of nonsense about this site spread by the other side. The first is that it's a war memorial and therefore has a secular purpose. But as the court notes, that is a false pretext that was invented after the legal fight began. The cross was originally put up solely as an endorsement of Christianity:

A cross was first erected on Mount Soledad in 1913. That cross was replaced in the 1920s and then blew down in 1952. The present Cross was dedicated in 1954 "as a reminder of God's promise to man of everlasting life and of those persons who gave their lives for our freedom . . . ." The primary objective in erecting a Cross on the site was to construct "a permanent handsome cast concrete cross," but also "to create a park worthy of this magnificent view, and worthy to be a setting for the symbol of Christianity." For most of its history, the Cross served as a site for annual Easter services. Only after the legal controversy began in the late 1980s was a plaque added designating the site as a war memorial, along with substantial physical revisions honoring veterans. It was not until the late 1990s that veterans' organizations began holding regular memorial services at the site.

This was originally on city land but it was transferred to the federal government by an act of Congress. The courts already ruled it unconstitutional under the California constitution, but that transfer restarted the whole challenge under the federal constitution. And now the same appeals court has ruled as it did before, that the placement of the cross is a clear endorsement of religion and thus unconstitutional:

Simply because there is a cross or a religious symbol on public land does not mean that there is a constitutional violation. Following the Supreme Court's directive, we must consider the purpose of the legislation transferring the Cross, as well as the primary effect of the Memorial as reflected in context, history, use, physical setting, and other background. Although we conclude that Congress did not harbor a sectarian purpose in establishing the Memorial in 2006, the resolution of the primary effect of the Memorial is more nuanced and is driven by the factual record. We do not look to the sound bites proffered by both sides but instead to the extensive factual background provided in the hundreds of pages of historical documents, declarations, expert testimony, and public records. Here, a fact-intensive evaluation drives the legal judgment...

In addition to overshadowing the Memorial's secular elements, the Cross's central position within the Memorial gives it a symbolic value that intensifies the Memorial's sectarian message. The Memorial's secular elements--the plaques, paving stones and bollards--represent specific individuals or groups of veterans, but the Cross, at the center of the Memorial, is meant to represent all veterans, regardless of their faith. The Cross, however, is the "preeminent symbol"--a "gleaming white symbol"--of one faith, of Christianity. The particular history of this Cross only deepens its religious meaning. The Cross is not only a preeminent symbol of Christianity, it has been consistently used in a sectarian manner. As even the government's expert noted, "over time . . . Mount
Soledad and its cross became a . . . Christian site." The Cross's history casts serious doubt on any argument that it was intended as a generic symbol, and not a sectarian one...

The use of such a distinctively Christian symbol to honor all veterans sends a strong message of endorsement and exclusion. It suggests that the government is so connected to a particular religion that it treats that religion's symbolism as its own, as universal. To many non-Christian veterans, this claim of universality is alienating. As one World War II veteran who fought in both D-Day and the Battle of the Bulge put it:

"I don't know if it is a Christian monument, but it does not speak for me. I was under Hitler and in a concentration camp and a cross does not represent me. The Cross does not represent all veterans and I do not know how they can say it represents all veterans.
I do not think a cross can represent Jewish veterans."

One of the plaintiffs, Steve Trunk, explained that he was "a veteran who served his country during the Vietnam conflict [but] I am not a Christian and the memorial sends a very clear message to me that the government is honoring Christian war veterans and not non Christians."

By claiming to honor all service members with a symbol that is intrinsically connected to a particular religion, the government sends an implicit message "to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." ...

Accordingly, after examining the entirety of the Mount Soledad Memorial in context--having considered its history, its religious and non-religious uses, its sectarian and
secular features, the history of war memorials and the dominance of the Cross--we conclude that the Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause.

Let me make three predictions. First, the religious right is going to throw a fit about this. When the Worldnutdaily and similar outlets publish stories about it, they will claim that this puts all crosses, including those on headstones, at military graveyards at risk. This is nonsense. The ruling very clearly distinguishes between such crosses and the one in this case.

Second, the DOJ will choose to appeal the case to the Supreme Court, just as they chose to appeal the district court ruling. They will do this to appease their opponents, which will fail as always.

Third, the Supreme Court will accept the appeal. The conservatives on the court will seek to overturn the ruling and do away with both the endorsement test and the purpose prong of the Lemon test in the process. Whether they succeed will rest solely with Justice Kennedy. And that's not exactly encouraging.