In a ruling that could reach the Supreme Court, the Ninth Circuit has held that San Diego’s Mount Soledad cross is unconstitutional. The 43-foot cross was erected to honor veterans of the Korean war. The case is Trunk v. City of San Diego, 2011 U.S. App. LEXIS 53 (January 2011), and the case could well be on its way to the United States Supreme Court where at least four justices are likely to question this analysis.
The ruling came after a long series of maneuvers to avoid review. The city tried to twice sell the property to allow the cross to remain but the courts found such sales violated California’s “No Preference” clause by giving “substantial financial advantage to bidders” who intended to leave the cross in place. Two Republican members later inserted a legislative provision that declared the property to be a national veterans memorial and authorized the federal government to accept the donation of the property. However, the San Diego city attorney found such a transfer would violate state and federal law. That finding was reversed by a vote of the city council — leading to a new round of challenges. In 2006, three Republican members pushed through a bill to seize the property by eminent domain as a “historically significant war memorial.” The case had reached the Supreme Court in 2006 when the Court granted a stay in light of the federal action in San Diegans for the Mt. Soledad Nat’l War Mem’l v. Paulson, (No. 05A1233), (No. 05A1234) (July 7, 2006). This last ruling addresses that transfer to federal possession.
The court found that under both Lemon and Van Orden that the congressional purpose behind the law was secular and not religious. The court, however, then looked to the effect of the effects prong of Lemon and , whether it is “objectively reasonable for the government action to be construed as sending primarily a message of either endorsement or disapproval of religion.” Vernon v. City of Los Angeles, 27 F.3d 1385, 1398 (9th Cir. 1994). Under Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309-10 (2000) (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984)) the court held “we are not concerned with all forms of government approval of religion—many of which are anodyne—but rather those acts that send the stigmatic 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 . . . .’ ” The Court found such an endorsement:
The reasoning behind our prior decisions is straightforward. “A sectarian war memorial carries an inherently religious message and creates an appearance of honoring only those servicemen of that particular religion.” Ellis, 990 F.2d at 1527. Thus, the use of exclusively Christian symbolism in a memorial would, as Judge O’Scannlain has put it, “lead observers to believe that the City has chosen to honor only Christian veterans.” SCSC, 93 F.3d at 626 (O’Scannlain, J., concurring). And insofar as the cross is “not a generic symbol of death” but rather “a Christian symbol of death that signifies or memorializes the death of a Christian,” American Atheists, 616 F.3d at 1161, a reasonable observer would view a memorial cross as sectarian in nature.
Nothing in the record suggests that our reasoning in SCSC and Ellis was mistaken or that the Latin cross possesses an ancillary meaning as a secular war memorial. The Jewish War Veterans have provided two expert declarations from G. Kurt Piehler, a professor of history and Director of the Study for War and Society at the University of Tennessee. Those declarations provide extensive evidence that the cross is not commonly used as a symbol to commemorate veterans and fallen soldiers in the United States. Piehler’s history is not rebutted by the government’s experts, and the record supports Piehler’s conclusion that the vast majority of war memorials in the United States do not include crosses. We accordingly recount Piehler’s history at some length.
The opinion turned on a conflict of experts who disagreed on the historical use of a cross as a war memorial:
We recognize that one of the government’s experts, Edward T. Linenthal, submitted a declaration opining that “[c]rosses at battle sites, or memorials to veterans’ service are not sectarian religious symbols” but instead “signify enduring national themes of” American civil religion, such as “redemptive blood sacrifice and the virtue of selfless service.” Linenthal’s declaration discusses American civil religion, its “[r]itual expression[s],” and its symbols in some detail and specifically lists the symbols used to celebrate Memorial Day, including “the American flag, the meticulous decorating of graves . . . [and] parades of civic groups, high school bands, and veterans of the American Legion and Veterans of Foreign Wars.” But Linenthal attempts to incorporate crosses into American civil religion only by stating that war memorials are part of the civil religion and then listing a few of the monuments discussed above. In light of the uncontested history submitted by Jewish War Veterans, the few memorials cited by Linenthal provide less than a scintilla of evidence to support his conclusion that the Latin cross serves as a non-sectarian war memorial. Linenthal’s conclusory declaration is insufficient to create an issue of material fact on this issue. See, e.g., Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081 (9th Cir. 1996) (“The mere existence of a scintilla of evidence is not enough to create a genuine issue of material fact in order to preclude summary judgment.”) (internal quotation marks omitted).
The opinion is extremely well-written and includes a detailed analysis of the history of the cross. Justices Roberts, Scalia, Alito, and Thomas may well be inclined to accept the case with an eye to reversal. Notably, in Salazar v. Buono, 559 U.S. ___ (2010), the Supreme Court reversed and remanded in a plurality decision by the Ninth Circuit that found that the Latin cross in the Mojave National Preserve in San Bernardino violated the establishment clause. (The cross was later stolen).
Notably, it was Justice Anthony Kennedy (the court’s swing vote on such issues) who ruled
“The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society. . . . Here one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”
The only reference to Salazar in the opinion, however, is the following:
Military cemeteries have not, of course, remained entirely free of religious symbolism. Most famously, American soldiers who fell in battle during World War I and World War II are movingly memorialized with “thousands of small crosses in foreign fields” in Europe and the Pacific. Salazar v. Buono, 130 S.Ct. 1803, 1820 (2010) (plurality op.).
Salazar was highly fractured with concurrences by Roberts, Scalia (joined by Thomas), and Alito.
The opinion is worth a read. The record of the case certainly shows a degree of post hoc efforts to create a secular role for the cross with regular memorial services. The earlier record showed more religious ceremonies held at the location during Easter holidays and other events.