Ninth Circuit Declares Mount Soledad Cross To Be Unconstitutional

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

64 thoughts on “Ninth Circuit Declares Mount Soledad Cross To Be Unconstitutional”

  1. JT thats Buddhas purpose….you need to get a different perspective….

    Now to the story…Maybe Oral Roberts could lend his 70 foot Jesus to bare this cross…..

  2. mespo wrote:

    “I am happy to let the readers decide if you are a master of metaphysical (and mystical) interpretation, or an egotist explaning things beyond your knowledge and training, or, pathetically, just a bullsh*t artist.

    Want a show of hands?”


    It’s long been clear, IMO…

  3. BBB,
    Sorry to rain on your parade, but the Cross is the most Christian symbol that there is. It is a symbol of the very crucifixion that you claim would be going too far! What is the cross if it isn’t about the Crucifixion?
    The only thing that I agree with you on is that the Supremes will rule on this case in the near future.

  4. JBH, PhD,PE:

    “Now I know why there are all those “colon cleansing” TV commercials.

    Thanks for showing me the way.”


    “Knowledge is Good.”

    ~Emil Faber

  5. Mespo,

    Now I know why there are all those “colon cleansing” TV commercials.

    Thanks for showing me the way.

  6. rafflaw,

    The reason I wanted you to familiarize yourself with Lynch was for you to see that the Court does not see Jefferson’s “Wall” to be so impenetrable.

    “The Court has sometimes described the Religion Clauses as erecting a “wall” between church and state, see, e. g., Everson v. Board of Education, 330 U. S. 1, 18 (1947). The concept of a “wall” of separation is a useful figure of speech probably deriving from views of Thomas Jefferson. The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.

    No significant segment of our society and no institution within it can exist in a vacuum or in total or absolute isolation from all the other parts, much less from government. “It has never been thought either possible or desirable to enforce a regime of total separation . . . .” Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 760 (1973). Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. See, e. g., Zorach v. Clauson, 343 U. S. 306, 314, 315 (1952); Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203, 211 (1948). Anything less would require the “callous indifference” we have said was never intended by the Establishment Clause. Zorach, supra, at 314. Indeed, we have observed, such hostility would bring us into “war with our national tradition as embodied in the First Amendment’s guaranty of the free exercise of religion.” McCollum, supra, at 211-212.”

    Lynch was about a “crèche” (a nativity scene). The Court found that including a crèche in Pawtucket’s Christmas display did not violate the Establishment Clause. I can’t help but think that a nativity scene is much more closely identified with the Christian religion than is a simple cross.

    It is my position that a cross is ok, but a crucifix would not be ok. I have a feeling that it won’t be too long before SCOTUS tells us what they think. 🙂

  7. Mike S.

    Off topic:

    On your recommendation of picking up an Iain Banks book: Fantastic. Have you read any of his non science fiction?

  8. Brian,

    I submit that your American Government teacher was full of crap.

  9. I’d like to add to this exposition why people, no-Christians might be sensitive on an issue such as this, that in truth is relatively minor. As a Jew growing up and in elementary scholl in the 50’s I was forced (or be ostracized/punish) to participate in Christmas/Easter activities.

    Now in truth I like the celbration of Christmas from the standpoint of the excitement, the decorations and even the carols (even the overtly religious ones), but that is strictly my own personal esthetic feelings. I, however, resented being coerced into the celebration of these holidays (i.e. decorating the class christmas tree, or secret santa gift giving). This, however, was the mindset of the 50’s and Jews having barely become accepted into the American mainstream felt constrained to protest what was in fact religious prejudice.

    Despite verbal gyrations the cross has been a symbol of Christianity for almost two millenia. I do resent public land being used for it, just as I resent public property being used for celebrating Christmas. I do not think the co-erection of as Channukah Menorah ameliorates this and in fact am opposed to the use of the Menorah in public property for two reasons:

    1. Publich property should be secular and not used for any religious display.

    2. The erection of a Christmas tree with a menorah falsely gives the idea that Channukah is the “Jewish Christmas” and therefore continues christian misunderstanding of Judaism. Christmas is one of two major Christian holidays, whereas Channukah is among the most minor of Jewish holidays. no equivalency exists except that both fall in December.

    What to me as a non-christian is sad is that our Corporate State has actively secularized Christmas for commercial purposes and thus attenuated the religious symbolism for Christians. I can feel for those Christian believers who are appalled at what their celebration has become. This corporate secularization though has given rise to the false belief that the cross canbe seen as a universal symbol, rather than understanding it as the purely religious representational symbol that it is.

  10. J. Brian Harris, Ph.D., P.E.:

    You first said:

    “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 court is a religious symbol; ergo, ipso-facto, the court is unconstitutional.”

    You now say:

    “So, I found a source…courts, in one history book, in one setting, arose out of the priesthood. While my professor did indeed show how parallels could be drawn between a church and the contemporary court system, he made it clear, as I made an effort to also do, that I was positing an analogy that might be somewhat informative as to why prosecutors sometimes, as the public record clearly shows me as I read it, are willing to use deception and dishonesty to get a conviction.”

    I am happy to let the readers decide if you are a master of metaphysical (and mystical) interpretation, or an egotist explaning things beyond your knowledge and training, or, pathetically, just a bullsh*t artist.

    Want a show of hands?

  11. Perhaps the spirit (if that is a word) of Giles Corey invaded my life. “More weight”?

  12. RE: “You’re a really intelligent guy and I admire a lot of what you write, how your write and your dedication to honesty, but you are factually incorrect on this issue.”

    My American Government Professor was much concerned about errors of understanding, and used the church-court analogy to illustrate, not how our government, including courts. works, but how the way it works may be misunderstood.

    Except by “channeling” or some sort of “theory of mind,” it flummoxes me as to how someone not a witness to an event can know more about the event than those who actually witnessed the event.

    Were there an exact, invariable, one-to-one correspondence between every unique word as a symbol of meaning and the symbolized meaning, such that misunderstandings of any and all sorts were perfectly impossible, I would firmly avow my being mistaken.

    Alas, the meaning others derive from the words I obviously (in retrospect) choose with with near-perfect stupidity is commonly utterly uncorrelated with the meaning I intended to convey.

    Intelligent? What evidence exists to suggest that I am intelligent? For every thing someone else can tell that would impute intelligence to me, I can tell a hundred that would impute stupidity to me, and, as I live my life and you don’t, I can out-vote people who second-guess or pre-second-guess me every time.

    Methinks I spend more time with me than does any other human person. That may give me a sort of edge in understanding my intended meaning and in recognizing when the words I was able to find give rise to interpretations which, if life as such ever shocked me, surely would shock me worse than I have ever been shocked.

    I post comments here because I have yet to be banished and because I am stupid and stupidly wonder whether human stupidity may ever have a practicable remedy.

    In the Argentinian movie, “Man Facing Southeast,” Rantes comments that humans have one weapon Rantes and others of is live form are unable to overcome. What weapon does Rantes mean? Quoting from the English language subtitles, “Human Stupidity.”

    Is that movie of science fiction, or, like much of science fiction, does it contain a science fact? I am too stupid to figure that out.

    I figure I am the ranking living world expert on the nature and extent of my personal stupidity. I live the life I find I am able to live, and not a life I am unable to live.

    Might that be a path toward the possibility of my garnering a hint of intelligence, though I cannot fathom when such could be.

    How can it be a waste of time to work at learning what causes hatred?

  13. I agree that time is being watsed on this issue. The time waters are those who continue to support this illegal structure. Hopefully, finally, the backers’ deliberate, blantant attempts to circumvent and violate the Constutuion may be over. The religiosos have followed this case quite closely with the stated intention of using it as a template to go around the country putting up crosses, Ten Commandment statues, nativity scenes, etc in order to break the church/state seperation.

  14. Why would anyone here use another’s nom de plum? In Dr. Harris’ case it is so obvious as to be ridiculous. Silly wabbit.

  15. Two things. It’s not establishment. And it’s such a waste of time and money.

    Okay. Three things, the Korean war was unconstitional (and immoral).

    I know. That’s four. Maybe five.

    It’s pathetic with what is going on in the country that anyone is wasting time with this. The TSA sexually assaults you at the airport but the great civil rights leaders busy themselves with stupid things that have nothing to do with violations.

    No wonder the gestapo grows by leaps and bounds what with lawyers and judges training at gnats and swallowing camels. If it wasn’t unconstitutional to run a chapel in congress from the time of the founding it is not unconstitutional to run a monument. It is simply not establishment except in the minds of the demented.

    What IS and WAS unconstitutional is the Korean war. And the Iraq “war”. And the invasions of Pakistan, and Yemen, and so forth.

    But, the left loves murder. So they worry about dumb momunents more than unconstitutional wars.

  16. Oh, and as to the point of prosecutors lying to get convictions? That has less to do with religious cannon law (except in the case of the Inquisitions) than it does with the fact that some people are overly ambitious and unethical assholes who will do anything to make themselves look successful – wrong or not. A psychological mechanism.

  17. You may be uppity, which is your right, but you’re also wrong on this one, Brian.

    The Western legal tradition traces directly back to the Code of Justinian. While the Code had laws in it that were directed toward religion – specifically previsions against certain pagan practices and heresy – those were law, not the courts proper and a reflection of the fact that Orthodox Christianity was the the official state religion. The courts themselves established under the code were not ecclesiastical but civil courts and handled much more than ecclesiastical disputes. In fact, they primarily addressed property disputes and criminal actions. Some of the laws against pagan practices were, in fact, analogous to felony murder charges today. If the one was involved in a human sacrifice – they treated it exactly like felony murder. Just being at the sacrifice could get you charged with murder.

    The Corpus Juris Civilis led directly to the Napoleonic Code which established the first purely civil court system – as it informally recognized a separation of church and state – and is the foundation of the state laws of Louisiana today as well as many European countries. Had the Romans not had a state religion, you might not have this confusion, but their courts were primarily civil courts even though some of their laws governed religious practice. This is not the same as an ecclesiastical courts which were, as mespo accurately described, limited to interpretations of the canon law of their particular denomination and a creation of the Middle Ages when the Code of Justinian was seen as inadequate by the churches for their internal disputes and established as a parallel court system. The Inquisition was the ecclesiastical courts run amok. The Inquisitor trials were held in ecclesiastical courts. Their success was due largely to the raw economic power of the RCC inducing fear in the existent civil courts and other various state apparatus to challenge them but they were a parallel, non-state system even though some states gave them wide berth to operate if not actual sanction.


    You’re a really intelligent guy and I admire a lot of what you write, how your write and your dedication to honesty, but you are factually incorrect on this issue.

  18. That professor was responding to another student’s question, he was intending to help said student understand the possibility of alternative interpretations to the first one that may come to mind.

    You were not there, in that classroom, or were you, and I was sleeping and did not notice?

    One source may suffice to show that there are not zero sources. Of course, interpretations of sources vary according the the source interpreter…

    H. G. Wells, “The Interpretation of History: Being a Plain History of Life and Mankind,” The Macmillan Company, New York, 1921 (in the public domain, page 205:

    (1) First, then, came the priesthood, [italics on]the temple system,[italics off] which was the nucleus and the guiding intelligence about which the primitive civilizations grew. It was still in these later days a great power in the world, the chief repository of knowledge and tradition, and influence over the lives of every one, and a binding force to hold the community together. But it was no longer all-powerful, because its nature made it conservative and inadaptable. It no longer monopolized knowledge nor initiated fresh ideas. Learning had already leaked out to other less pledged and controlled people, who thought for themselves. About the temple system were grouped its priests and priestesses, its scribes, its physicians, its magicians, its lay brethren, treasurers, managers, directors, and the like. It owned great properties and often hoarded huge treasures.
    (2) Over against the priesthood, and originally arising out of it, was the [italics on[court system,[italics off] headed by a king or a “‘king of kings,”…

    So, I found a source…courts, in one history book, in one setting, arose out of the priesthood. While my professor did indeed show how parallels could be drawn between a church and the contemporary court system, he made it clear, as I made an effort to also do, that I was positing an analogy that might be somewhat informative as to why prosecutors sometimes, as the public record clearly shows me as I read it, are willing to use deception and dishonesty to get a conviction.

    To me, in my bioengineering work, such resolute determination to get a desired outcome regardless of decency or honesty smacks of religious-type fervor.

    I can parry dit for dah, and were I willing to do so, I would report that you were right, the delusion detector was pointed the wrong way, toward you, and was blinking as you thought. When I turned it to point toward me, the blinking red delusion LED went out and the steady green truthful LEd came on.

    Because I am unwilling to parry dit for dah, the paragraph immediately preceding this one isn’t there.

    Pursuant to another thread, in 1961, I lived in East Garfield Park, in Chicago, and often attended Warren Avenue Congreational Church. A visitor from Jamaica, a British citizen, had taken an airplane from Jamaica to Mississippi, on his way to Chicago, and had arranged to meet a Mississippi Congregationalist guide at the airport, which had two waiting areas, Whites Only, and Colored. The airport terminal was not a public bus.

    The Mississippi Congregationalist was, by Mississippi law of the time, only allowed in the Whites Only waiting are, and the British Citizen went to look for his guide. Going into the waiting area where his guide was waiting, he was confronted by a police officer who informed him he was violating the law. When the Jamaican got out his British passport, the police officer apologized, because the Jamaican was obviously white by his being British.

    In East Garfield Park, there were other “jokes” that were not exactly jokes. One was of a fellow who was visiting Birmingham for the first time. It was in January of 1957. The fellow got on a bus, paid his fare, and sat down.

    The bus driver called out, “Boy, go to the back of the bus.” The fellow stayed where he was. The bus driver screamed out, “Boy, go to the back of the bus right now!” The fellow stayed where he was.

    The driver got up, stood in front of the fellow and screamed at the top of his lungs, “Boy, are you deaf? Get to the back of the bus or else!”

    The fellow stood up, 6 feet, 6 inches tall, 215 pounds, all muscle, and picked up the bus driver (5 feet, 4 inches tall, 140 pounds) with one hand and artfully waved his schiv.

    The bus driver protested, “What did I do to deserve this?”

    The fellow answered,
    “First, you called me ‘boy.’ ”
    “Second, you forgot about that Supreme Court decision.”
    “Third, you thought I was a non-violent negro.”

    The good news about me, I am non-violent.

    The bad news about me, I sure as anything am uppity.

    Pacem in Terris.

Comments are closed.