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.
Source: CNN
Jonathan Turley
“It is whatever you decide it to be.”
BBB, your ability to tap dance is beyond compare.
It’s perfectly obvious what it is, and as a lifelong resident of San Diego, there is no doubt as to what it is regarded as by the local population – there is a long history of Christian religious services being held there each year, before the lawsuits started in the 1980s.
My main problem with it is not that it is a symbol of Christian faith, it’s that it is hideous – as someone noted above, it looks like a giant cinderblock. You’d think the followers of the Jesus cult would want something a bit more…tasteful to commemorate their religion.
rafflaw,
Have you read Lynch v. Donnelly?
The cross of St. Andrew is of course, on the flag of Scotland. The torchlight ceremony at highland games is a re-enactment of the ancient call to arms of the highland Clans. In time of need, a Clan Chieftain would have a cross of wood mounted on a hilltop and set it ablaze. It was usually in the form of the St. Andrew’s cross; in the shape of an X. Those clansmen seeing the blazing cross would lay down whatever they were doing and hasten to the rallying point to deal with the problem.
At a highland games, the opening ceremony typically has a torchlight ceremony in which a representative from each Clan carries a torch and brings it to the St. Andrews cross in the middle of the field. They place each torch in a holder in the cross and when all the torches are in place, it makes a great fiery cross that can be seen for miles. Here are some photographs from the ceremony 2009 Grandfather Mountain Highland Games in North Carolina. I read somewhere that there are more people of Scottish descent in North Carolina than there are in Scotland.
In the interest of full disclosure, I have carried the torch for our highland Clan a number of times.
http://www.gmhg.org/Torchlight%20Ceremony%20Photo%20Gallery%202010.htm
Here is a video of the 2005 GMHG torchlight ceremony. The song is Fire on the Mountain, sung by my friend Colin Grant-Adams. I am in this video. Easy to find, I am the one with the beard. Heh!
[youtube=http://www.youtube.com/watch?v=Zb80VrxEVtg&fs=1&hl=en_US&rel=0]
Thanks Gyges.
BBB, the Cross, in whatever form you desire is a Christian symbol of Christ dying on the Cross. The people that you refer to can set up their own cross on their own property without government entanglements. The separation of Church and State is real and this cross on government property violates that principal. The Separation actually protects Christians from someone declaring Judaism the national religion and vice versa. Of course, the Christians would have a fit if a mosque was built on government property. Hell, they have a fit when it is built in the middle of New York City.
Thanks for the history lesson, Gyges. I had forgotten about the cross of St. Peter.
BBB,
Actually the Klan’s confused. The burning Cross thing comes from Scotland where they were used as signal fires. The Scots used St. Andrews cross, which is an X. Not that it matters too much to your point.
Perhaps you should use the inverted Cross as an example. Loved by Metal bands and Popes alike.
rafflaw,
“but it is still a Christian symbol, is it not?”
It is whatever you decide it to be.
Just as the KKK can use a cross as a sign of hatred, another group can see it as a symbol of great sacrifice. I think the whole religious symbolism thingy has been taken too far. If there was a likeness of Jesus incorporated into the cross, I would say that it is a Christian symbol. Without that likeness, it is just a cross.
The first Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
I don’t see how a cross establishes anything, and I don’t see it phohibiting anything. Nor do I see someone holding two tablets (I-V on on side and VI-X on the other) on the Supreme Court Building (symbolizing Moses and the Ten Commandments), as an establishment of religion. In that case it has been interpreted to symbolize the lawgiver.
Words, like symbols, only have the attributes that people give to them.
Isn’t the tearing down of a symbol that some have decided to use in the exercise of their religion an effort to prohibit “the free exercise thereof”? 🙂
” … but why in the hell waste so much court cost and public money fighting over a site where a cross has existed for so long?” (Six)
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‘Cause lawyers need the work. (I’m outta here soooo fast!)
What would the same court have ruled if this was a Buddha statue honoring the 1800s Chinese Immigrant heritage or something similar? And the people supporting it? Opposing it? Would that have changed thier arguments? Probably so.
I am not a Christian, but I have no problems with symbols identifying a particular religion on public property… particularily if the site has been a place where some sort of religious symbol has existed for a century. Call it a grandfather clause or something similar. I do however oppose any building of new sites with religious overtones… but why in the hell waste so much court cost and public money fighting over a site where a cross has existed for so long?
The history of the cross is tangled to say the least. It wasn’t made into a war memorial until 1989 and that was several months after a lawsuit raising the separation issue was filed. It had previously been strictly a religious icon and the site of annual Easter religious rituals. The whole war memorial issue is bogus.
mmc, the original Mt. Soledad cross was erected in 1913 and was of wood, crosses have come and gone on the site since then. I found this to be a particularly amusing reference in the Wikipedia article:
“Three differently shaped Christian crosses have been constructed since 1913 on City government property at the apex of Mt. Soledad (Mt. Soledad Natural Park) in the community of La Jolla.
The original wooden cross on Mt. Soledad was erected in 1913 by private citizens living in La Jolla and Pacific Beach, but was stolen in 1923; later that year it was affixed back in the ground in Mt. Soledad Natural Park only to be burned down by the Ku Klux Klan.”
http://en.wikipedia.org/wiki/Mount_Soledad_cross_controversy
“…was erected in 1913 to honor veterans of the Korean war”
Really?
BBB,
Thanks BBB, but the Benedictine Nuns taught me what a Latin Cross is. Heck they probably hit me with a few Latin Crosses during those days, but it is still a Christian symbol, is it not?
rafflaw,
A “Latin Cross” is the name associated with that style of cross. Other styles are the Greek, Calvary (Graded), Celtic, or Russian Orthodox.
eniobob,
Thanks for the video. Did I see an altar just behind the Cross? In my opinion, this is another attempt to mix religion with politics. The Cross is a Christian religous symbol and this Cross does not belong on governmental property. It was intresting that Justice Kennedy called the cross in the Salazar case a “Latin Cross”. What would a latin cross be other than a Christian relgious symbol? I am sure that the Supremes will accept this case and anything is possible with the Roberts group.
When will cities like San Diego, Saint Louis, and Saint Paul be required to change their names? Isn’t it just a matter of time? These names definitely have religious roots.
Is the cross, without bearing a likeness of Jesus, strictly a Christian symbol? Like most symbols, isn’t the symbolism up to the individual?
And then there’s the Yawkey family cross atop Mt. Helix in La Mesa to the east of La Jolla.
This was a public park that the city council ceded to private hands, as I understand it, so it’s still there but no longer on public land but open to the public. What a web we weave.
A better view gives better understanding :
why would anyone–christian or elsewise–want such a hideous oversized cinder block commemorating anything?
just sayin’
I am here to serve.
Damn. There goes one of my weekend posts. 🙁