Wednesday, January 05, 2011

9th Circuit: Mt. Soledad Cross Violates Establishment Clause

In Jewish War Veterans v . City of San Diego, (9th Cir., Jan. 4, 2011), the U.S. 9th Circuit Court of Appeals held that the Mt. Soledad Memorial featuring a 43-foot high cross conveys a government message of endorsement of religion that violates the Establishment Clause. The land on which the Memorial sits is currently owned by the federal government which seized it by eminent domain in the midst of state constitutional challenges to the Memorial. (See prior posting.) The constitutionality of the Memorial has been the subject of litigation for the past 20 years. The court held that while Congress' purpose in acquiring the Memorial was primarily secular, the government's action violates the "effects" prong of the Lemon test. Here are some excerpts from the 50-page opinion:
For most of its life, the Memorial has consisted of the Cross alone. The Cross is the third in a line of Latin crosses that has stood on Mount Soledad since 1913..... There was no physical indication that the Cross was intended as a war memorial, however, until a plaque was added to the site in 1989, after litigation over the Cross had begun. At the same time, the Cross’s religious nature has been widely recognized and promoted since it was first erected.... The Cross’s importance as a religious symbol has been a rallying cry for many involved in the litigation surrounding the Memorial.... La Jolla—where the Memorial is located and serves as a prominent landmark—has a history of anti-Semitism that reinforces the Memorial’s sectarian effect....
The use of such a distinctively Christian symbol to honor all veterans sends a strong message of endorsement and exclusion. It suggests that the government is so connected to a particular religion that it treats that religion’s symbolism as its own, as universal. To many non-Christian veterans, this claim of universality is alienating...
In reaching its conclusion, however, the court added:
This result does not mean that the Memorial could not be modified to pass constitutional muster nor does it mean that no cross can be part of this veterans’ memorial. We take no position on those issues.
The Los Angeles Times reports on the decision.