In Trunk v. City of San Diego, (— F.3d —-, C.A.9 (Cal.), January 4, 2011), the United States Court of Appeals considered whether a large Christian cross, the most prominent feature on a war memorial on public land, was primarily a religious symbol and in violation of the First Amendment’s Establishment Clause. The court ruled that the presence of some non-sectarian features at the memorial, and the sporadic occurrences of war memorial services at the site, did not alter the fact that the cross is a distinctively Christian symbol and its presence on public land primarily conveys a government endorsement of religion. Therefore, the court determined it violates the Establishment Clause.
Facts
Steve Trunk (“Trunk”) and the Jewish War Veterans of America (“JWVA”) brought a lawsuit against the City of San Diego (“City”) to challenge the existence of a large cross at a war memorial atop Mt. Soledad on City property. Trunk & JWVA claimed that the cross was a Christian symbol and implied that only Christian war veterans were being honored, in violation of the Establishment Clause.
A cross was first erected on the mountain in 1913. The 43-foot-high cross currently on the site was erected by the Mt. Soledad Memorial Association (“Association”) in 1954, and dedicated as a war memorial and as “a tribute to God’s promise of everlasting life.” Since the 1990s, more features have been added to create a more extensive war memorial. For most of its existence, its upkeep was financed by the Association. When public challenges to the cross began occurring in the 1990s, Congress passed legislation authorizing the federal government to take possession of the land as a historically significant war memorial. The federal government took possession in 2006, in the same month that Trunk and JWVA brought suit against the City. The district court ruled that Congress had a non-religious purpose in acquiring the monument and granted summary judgment to the government. Trunk and JWVA appealed.
Decision
The three-pronged test for violation of the Establishment clause was established in Lemon v. Kurtzman 403 U.S 602 (1971). The Lemon test asks whether the action or policy at issue (1) has a secular purpose, (2) has the principal effect of advancing religion, or (3) causes excessive entanglement with religion. Here, the court said, Congress’ purpose in acquiring the memorial was primarily secular, to preserve a historic memorial. However, its principal effect, the court found, was to advance a specific religion, violating the second prong of Lemon.
The Latin cross itself is not just the preeminent symbol of Christianity, it is also exclusively a Christian symbol, exclusive of any other religion, the court noted, and is not a common non-sectarian symbol more generally associated with war memorials. After a lengthy, detailed review of the history of the cross, the court concluded: “Overwhelming evidence shows that the cross remains a Christian symbol, not a military symbol.”
The court was unmoved by the government’s argument that the occasional use of the memorial for non-religious purposes rendered the cross non-sectarian. Those uses included non-religious ceremonies honoring the military, observing several rows of granite plaques honoring military personnel, saluting the American flag, and using benches and nature trails for scenic viewing. In spite of those non-sectarian uses, the court found that the cross was the pre-eminent feature on the site, and that it was dedicated for religious purposes and primarily used as such throughout its history. “The use of such a distinctively Christian symbol to honor all veterans sends a strong message of endorsement and exclusion,” the court found. Therefore, the court ruled its presence on public land violated the Establishment Clause.
The district court’s ruling was reversed and remanded for entry of summary judgment in favor of Trunk and JWVA.
Questions
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