Adding another chapter to a legal dispute that has been ongoing for more than 20 years, the 9th Circuit yesterday ruled unconstitutional the cross atop the Mt. Soledad Memorial in La Jolla, California. The decision could have significant church-state ramifications in the area of government monuments.
Defenders of the site's prominent cross claim it is a secular war memorial, making the presence of such a symbol appropriate. But the court countered that the area – which is now federal land – had only recently become a war memorial, and then only in response to the lawsuit. As Judge Margaret McKeown (perhaps too cutely) put it: "Resurrection of this Cross as a war memorial does not transform it into a secular monument."
The court weighed several contextual elements in reaching its decision: the historical use of this cross, its particular presentation and setting, the use of crosses in other national war memorial sites, in determining that the Mt. Soledad cross conveys a message of government endorsement of religion, in violation of the separation of church and state.
Highlights from the decision (pdf) are below.
On attempts to turn the memorial into a secular combination of elements:
[C]onsidering the entire context of the Memorial, the Memorial today remains a predominantly religious symbol. The history and absolute dominance of the Cross are not mitigated by the belated efforts to add less significant secular elements to the Memorial.
…
The fact that the Memorial also commemorates the war dead and serves as a site for secular ceremonies honoring veterans cannot overcome the effect of its decades-long religious history…The Memorial’s relatively short history of secular usage does not predominate over its religious functions so as to eliminate the message of endorsement that the Cross conveys.
On the limited use of crosses at other national sites honoring soldiers:
The cross, in other words, has never been used to honor all American soldiers in any military cemetery, and it has never been used as a default gravestone in any national cemetery in the United States. Whatever memory some may have of rows of crosses as the predominant symbol for honoring veterans is not reflected in this record.
On the argument that the cross has become a secular symbol:
Overwhelming evidence shows that the cross remains a Christian symbol, not a military symbol.
On the size and setting which distinguish the Mt. Soledad cross:
Further, we cannot overlook the fact that the Cross is forty-three feet tall. It physically dominates the Memorial, towering over the secular symbols placed beneath it, and is so large and placed in such a prominent location that it can be seen from miles away. A forty-three foot cross that was erected in part to celebrate Christianity, and that serves as the overwhelming centerpiece to a memorial is categorically different from the small crosses used to mark the graves of individual Christian soldiers. The size and prominence of the Cross evokes a message of aggrandizement and universalization of religion, and not the message of individual memorialization and remembrance that is presented by a field of gravestones.
On the message received by a reasonable observer viewing the site:
Overall, a reasonable observer viewing the Memorial would be confronted with an initial dedication for religious purposes, its long history of religious use, widespread public recognition of the Cross as a Christian symbol, and the history of religious discrimination in La Jolla. These factors cast a long shadow of sectarianism over the Memorial that has not been overcome by the fact that it is also dedicated to fallen soldiers, or by its comparatively short history of secular events. … 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.
Concluding:
[A]fter examining the entirety of the Mount Soledad Memorial in context—having considered its history, its religious and non-religious uses, its sectarian and secular features, the history of war memorials and the dominance of the Cross—we conclude that the Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause.
