Last January, the 9th Circuit held that the now federally-owned Mt. Soledad Memorial featuring a 43-foot high cross conveys a government message of endorsement of religion that violates the Establishment Clause. (See
prior posting.) On Friday, the 9th Circuit refused to rehear the case and also refused an
en banc rehearing
. However 5 judges, in an opinion written by Judge Bey, dissented from the denial of an
en banc rehearing. In
Jewish War Veterans v. City of San Diego, (9th Cir., Oct. 14, 2011), Judge Bey wrote in part:
History is important, in part because things change over time. The Spanish government of the day endorsed the Inquisition until the early years of the 19th Century. Would a reasonable observer therefore consider the edicts of King Ferdinand VII in determining whether today's Socialist government endorses the Inquisition? Of course not.
The panel concentrated its analysis on the history of the Cross as a religious symbol. Not on how this Cross at Mt. Soledad has been used by this government, but on the cross in general....
The principal defect of the panel's decision is its concentration on facts which occurred between 1913 and 2006. The City of San Diego is no longer the owner of the property. The federal government now owns the property. Thus, the use to which the City of San Diego put the Mt. Soledad Cross from 1954 to 2006, just as the use to which the private group put the Cross from 1913 to 1954, is not relevant as to whether the present use by the government—the precise use which plaintiffs seek to enjoin—constitutes an endorsement of religion.
