Whether the existence of a cross on a federally held memorial site violates the Establishment Clause of the First Amendment.
For over 100 years, a cross has been displayed as part of a veterans’ memorial in the San Diego community of La Jolla. Congress took over the memorial site in 2006 with the goal of maintaining the site. After being destroyed or falling over two times in the past, the Mt. Soledad Memorial Association (MSMA) formed to erect and maintain a new cross which still stands today. Prior to the acquisition, the City of San Diego faced a series of litigation about the cross existing on their property. In response, the MSMA began making changes to the memorial which included: adding a conspicuous bronze plaque noting that the cross is a memorial; an American flag was added; six concentric walls were added around the cross bearing engraved plaques with names, pictures, and personal information of over two thousand individual veterans as well as symbols of various religions; and sidewalks were added around the engraved plaques inviting passersby to read them up close.
Offended by the existence of a cross at a memorial, four individuals and The Jewish War Veterans of the United States of America, Inc. sued the United States, challenging Congress’ acquisition of the memorial as well as the cross being displayed on government land. Evidently the changes made in light of the 1989 litigation to bring in other symbolism were not enough for the suing group.
The Court Below
The United States District Court for the Southern District of California was the first to hear the case. The court ruled in favor of the City of San Diego on the grounds that the presence of a cross at a memorial does not constitute a government endorsement of religion. See opinion below:
Trunk v. City of San Diego, 568 F.Supp.2d 1199 (S.D. Cal., 2008)
Displeased with the ruling against them, the individuals and Jewish War Veterans of America (JWVA) appealed the decision to the Ninth Circuit. The court ruled in favor of JWVA arguing that the presence of a cross at the memorial tarnished it in its entirety as endorsing religion, thus resulting in a violation of the Establishment Clause. See opinion below:
Trunk v. City of San Diego, 629 F.3d 1099 (9th Cir., 2011)
Now displeased with the ruling against them, the City of San Diego appealed the case to the Ninth Circuit en banc. A majority of judges on the panel declined to review the case, thus allowing the prior decision in favor of the JWCA to stand. Judge Bea, in dissent, noted that “a cross is a cross is a cross,” the standard that the Ninth Circuit seemingly used, is not valid law. See opinion below:
Trunk v. City of San Diego, 660 F.3d 1091 (9th Cir., 2011)
Still dissatisfied with the Ninth Circuit’s denial to reconsider the case, San Diego appealed the case to the Supreme Court. The Court declined to hear the case, but Justice Alito did add a statement to the denial. In it, he spoke of the need to clarify the Court’s standpoint on religious imagery, but that this case was not yet ripe for review. See opinion below:
Mount Soledad Memorial Ass'n v. Trunk, 132 S.Ct. 2535 (U.S., 2012)
The case then moved back down to the district court for consideration following the Ninth Circuit’s initial ruling against San Diego. The lower court voiced that it still believes that the Mount Soledad memorial cross is not a violation of the Establishment Clause, but also lamented that it is bound the Ninth Circuit’s ruling, which was so restrictive that the only viable remedy to the supposed violation was to entirely remove the cross. So, the district court ordered its removal within 90 days. See opinion below:
Trunk v. City of San Diego, Nos. 06cv1597–LAB (WMc), w/06CV1728–LAB (WMc) (S.D. Cal., 2013)
Question before the Court
“Whether permitting the cross to remain as part of the veterans' memorial amounts to an unconstitutional establishment of religion.”
CCJ filed an amicus curiae brief in support of the City of San Diego
There are two reasons why the courts should allow the display of a cross at a memorial, even if that memorial is on government land. First, America has a rich history and tradition of acknowledging a creator and using religious symbolism. Second, the Lemon test is being inconsistently applied or eschewed altogether; it should be clarified and narrowed.
America has a rich history and tradition of acknowledging a creator and using religious symbolism. Since the founding of the United States, religion has played a role in American life and has been acknowledged in many official pronouncements. The idea that human rights are not bestowed by government, but rather pre-exist government, is grounded in the assertion that such rights are given “by their Creator.” The Constitution itself acknowledges a higher authority was fundamental to our national life. Even the state constitutions are replete with examples of references to a higher power. Some more prominent inclusions can be found in the Massachusetts, Pennsylvania, and California Constitutions. The Supreme Court has also recognized an “unbroken history of official acknowledgement by all three branches of government of the role of religion in American life from at least 1789” in Lynch v. Donnelly. Because of this rich and unbroken history, it is clearly evident that the government’s use of religious symbols in historical sites and memorials were never thought to be an establishment of religion. This tradition is worth protecting for both history’s sake and because the Founders rightly recognized the value religion has in fostering the kind of moral citizenry necessary for self-government. Losing either of these benefits would be a major step backwards for the United States.
The Lemon test is being inconsistently applied or eschewed altogether; it should be clarified and narrowed. Some circuits apply the Lemon test while acknowledging the “hopeless disarray” that results. Others have completely thrown out the Lemon test in some cases. The reason for this inconsistency is how broad and vague the Lemon test is, not to mention the uncertainty about whether it even applies in some instances. The Lemon test is a two-pronged test dictating that a religious display must have a secular purpose and neither advance nor inhibit religion. This is much too broad because almost anything can be argued to “advance” religion. This could lead economically downtrodden local governments to take down or avoid the use of any religious symbolism because they run the risk of being sued over it. This robs citizens of the rich centuries-old tradition of religion in civic life. This could all be fixed with a simple change to the Lemon test. Instead of being so broad as to allow anything vaguely religious to be lawsuit fodder, the test should only prohibit the advancement of religion where there is a coercive element to adhere to whatever religion the government is purportedly advancing. This allows the Founders’ desire for a moral citizenry informed by religious history to flourish while also banning religious coercion that is objectionable.
To recap, the Lemon test is so overbroad as to allow almost any religious display to be banned contrary to the intention of the Founders and running counter to American tradition. The simple fix that allows both sides to have their way is to alter the Lemon test to prohibit only religious displays that coerce religious adherence. For these reasons, San Diego ought to be allowed to make its case before the Supreme Court.
With the Supreme Court deciding not to take the case, the Ninth Circuit’s initial opinion becomes the controlling one. That opinion, as the district court noted, ultimately required that the cross be removed, even if the rationale for why is subpar. The Ninth Circuit held, in short, that a cross is a cross, and therefore any cross on government land is unacceptable. This is contrary to CCJ’s position.