Monday, October 17, 2011
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Ninth Circuit Leaves Ruling on Mount Soledad Cross Intact
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals Friday denied en banc review of a panel ruling that bars the federal government from owning a strip of land containing a 29-foot Latin cross in LaJolla in order to maintain the cross as part of a war memorial.
The court said a majority of its 27 active judges had voted not to grant en banc review of January’s three-judge panel ruling that maintenance of the cross by the Department of Defense would convey a message of government endorsement of religion.
Judge Carlos Bea, joined by Judges Consuelo Callahan, Diarmuid F. O’Scannlain, Richard Tallman, and Sandra Ikuta, dissented from the denial of en banc review. Bea cited Van Orden v. Perry (2005) 545 U.S. 677, in which the Supreme Court held that a display of the Ten Commandments on a monument given to the government at the Texas state capitol had a sufficiently secular purpose and function to satisfy the Establishment Clause.
Context Argued
“For the same reason that the Ten Commandments stand today in that park in Austin, Texas, the Cross should continue to stand on Mt. Soledad: a religious symbol is not always used to promote religion,” Bea wrote. “Whether it promotes religion depends on the context in which the symbol is displayed, how it is used, and its history. Here, that display, use, and history are secular and require affirmance of summary judgment for the federal government.”
In January’s per curiam opinion, Judges Harry Pregerson, M. Margaret McKeown, and Richard A. Paez said “there are countless ways that we can and should honor [our veterans], but without the imprimatur of state-endorsed religion.”
Friday’s denial of rehearing is the latest action in more than 20 years of litigation concerning the cross.
The presence of crosses on the site, part of a public park on an 822-foot hill, has a long history, dating back to 1913. The Mt. Soledad Memorial Association erected the present cross, with the city’s permission, and dedicated it as a veteran’s memorial in 1954.
Long Legal Fight
A previous cross on the site was destroyed in a storm in 1952. The legal fight began in 1989 when atheist Philip Paulson sued the city of San Diego over the cross. Paulson, a Vietnam War veteran, contended that the cross excludes veterans who aren’t Christian.
His suit resulted in a ruling that the presence of the cross on public property violated the strict separation of religion and state mandated by the California Constitution. City officials then placed before the voters a proposal to preserve the cross by donating the land to the federal government, which was overwhelmingly approved.
Congress passed legislation in 2006 authorizing the federal government to acquire the land by eminent domain. U.S. District Judge Larry Burns of the Southern District of California upheld the law two years ago, but the appellate panel disagreed.
The judges agreed with the government that the law had a secular purpose, but said the acquisition and maintenance by a federal entity of “an iconic Christian symbol” has the effect of advancing a particular religion and thus violates the constitutional separation of church and state.
Bea did not dispute that the cross is a Christian symbol, but said the context of its placement and the history of its use supports Burns’ decision.
‘History Is Important’
“History is important, in part because things change over time,” Bea wrote. “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 Ninth Circuit panel, he argued, had mistakenly analyzed the history of the cross in general, when it should have looked at “how this Cross at Mt.Soledad has been used by this government.”
Paulson, who brought the original suit, died in 2006. The present litigation was brought by a number of plaintiffs, including the Jewish War Veterans of the United States—although a local Jewish veterans’ group supports the cross—and San Diego attorney Judith M. Copeland.
The case is Jewish War Veterans of the United States of America, Inc. v. City of San Diego, 08-56415.
Copyright 2011, Metropolitan News Company