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
BBB, I apologize for taking so long to respond and my somewhat flippant response. I only know of the Lynch case from Prof. Turley’s citations above.
It is not just me that sees the Latin Cross as a purely Christian symbol. Most Christians think so. I think Buddha’s response to Six was right on point. The main issue is that any governmental embrace of religion is an attack on someone else’s religion. The idea of the Government settling on a state religion is not too far fetched. It doesn’t have to be imminent for the separation of church and state to remain important. Without the separation, a state religion would be right on the horizon.
Six,
I also apologize for taking so long to respond. I would have to agree with Buddha’s response as I suggested above to BBB.
One lives to be of service. 🙂
Buddha,
lol … very, very good!
Blouise,
lol
Admit it!
You just like to play in the pool. 😉
Who’s Bussha?
Six,
“what would your position be if this was a statue of Buddha erected honoring the work of the Chinese immigrant labor that helped to build the railroads?”
It would be just as inappropriate.
For more reasons that just being a violation of the Lemon test.
There are a lot of Chinese and not all of them are Buddhists.
Bussha,
mespo has to baptize me all the time … it never seems to completely take … thank god it’s not submersion
Yep.
And don’t try to blame quantum mechanics either, Brian.
Just because we like you doesn’t mean one of us won’t take you to task for something blatantly incorrect.
Consider mespo’s rebuke your baptism by fire if you must use religious imagery.
And again, welcome.
You are now officially “one of us”.
Wear the scar with honor.
Come on now Dr. Harris, you’re on a legal blog and you’ve been tossing out the little “The court is a religious symbol” quips from day one.
Eventually someone was going to lob one back at you … either handle it or stop the quips.
No need to apologize there JBH, PhD,PE. Bottom line is that you have no idea what you’re babbling about (I don’t believe anybody ever told you that nonsense about ecclesiastical courts) and no amount of polysyllabic purple prose can hide that fact. As for your “delusion detector,” methinks you have it pointed the business end the wrong way and the meter is blinking “BULLSH**T” in a frantic and frenetic way.
Ouch! Didn’t realize that I was whirling into profaning the sacred.
Not being of the “true-believer religious” type, when I stumble into an unrecognized sanctuary, I often find myself flamdoozled.
Interesting, how analogies as hypotheticals sometimes dance.
Anything can be traced back to anything which preceded it, thanks to quantum coupling. That hardly means that the tracing back has any meaning or significance outside the insignificance of random noise.
Except, it gives me rise to contemplation, whenever a supercilious concatenation of meaningless word symbols triggers a strong response.
That phenomenonologicalism, never intended by me to have anything but a mildly amusing effect; when it results in a strong response, notifies my delusion detector system to go on high alert.
In my life, the profane is at equity with all else within the sacred. To me, nothing not sacred it possible.
Sorry…
Six plus one – and all others
Which is why my Islamic personality is Sufi, and why my writing sometimes as-though whirls.
And, regarding courts, why, in “The Story of Burnt Njal” (as, e.g. found on the Internet as Online Medieval and Classical Library Release #11) were not the four courts sufficient? Why also the fifth court?
J. Brian Harris, Ph.D., P.E:
“[t]he structure of our courts can be traced back to ecclesiastical courts.”
***************
The structure of our courts can be traced to ancient Greece where the accused would personally plead his case before an assembly of about 500 citizens who sat as jurors. Witnesses were called to testify. The jury voted on innocence and punishment and the majority ruled. Tort law was developed first as criminal law by Solon and Draco, who were the appointed “law givers.” This development ended the “law of the feud” which permitted victims’ families to exact the same punishment received by their relative on the perpetrator.
The Romans further developed both tort law (Lex Aquilia) as well as criminal law, and created a class of jurists (jurisprudentes) to oversee the written codes and provide opinions on the law for use by magistrates. Magistrates (praetors) could issue edicts with the force of law (“public law”) and were not bound by stare decisis, but honored the concept on occasion.
In Rome, “private law” covered disputes among citizens who chose their own judge or picked one from a prescribed list. Lawyers (jurisconsults) were a late addition to the process and assisted litigants in the oratory needed for the process. The Emperor Claudius legalized the legal profession and abolished a ban on fees. By the 4th century, legal education was in full flourish.
Ecclesiastical courts came about in the Middle Ages and were limited to interpretations of the canon law of their particular denomination. Their procedures varied widely and did not include lay juries in most instances.
Boy, do you need another American Government teacher.
As my American Government professor pointed out, as had my dad earlier, the structure of our courts can be traced back to ecclesiastical courts.
The judge is the temple high priest
The defendant is the sacrifice being offered.
The jury is the choir.
The prosecution and defense attorneys are the acolytes.
The lesser court employees are the bell-boys.
The public is the congregation.
The bench is the altar.
and
The deity cannot see what is happening.
The court is a religious symbol; ergo, ipso-facto, the court is unconstitutional.
Every utility pole, set on public property, with a cross-arm is obviously ipso-facto unconstitutional.
Every public building with vertical and horizontal frame members at right angles to each other is obviously ipso-facto unconstitutional.
Anything may be a religious symbol to someone, anything is obviously ipso-facto unconstitutional.
The U. S. Constitution may be a religious symbol to someone, the U. S. Constitution is ipso-facto unconstitutional.
Therefore, there is no Constitution?
Now, finally, I understand recent SCOTUS decisions!
@Rafflaw – I mean this in all seriousness, what would your position be if this was a statue of Buddha erected honoring the work of the Chinese immigrant labor that helped to build the railroads? Just curious.
rafflaw,
I don’t doubt that you view the cross as a symbol of Christianity.
This quote from Lynch best expresses my sentiment (no matter who see the cross as a symbol of Christianity.
“Any notion that these symbols pose a real danger of establishment of a state church is farfetched indeed.”
BBB,
No, why don’t you enlighten me why it matters when the issue is if the Cross is a Christian symbol or not.
The song is Fire on the Mountain, sung by me. I am in this video. Easy to find, I am the one with the beard. Heh!