By Sean McGilvray
The 9th Circuit recently denied a rehearing for the case in which they ruled that the giant cross that sits on federally owned land atop Mount Soledad in La Jolla, California is unconstitutional. In January of this year, the 9th Circuit took the entirely reasonable position that when the federally-maintained Mt. Soledad Veterans Memorial tops itself with a 25 foot tall representation of the most fundamental symbol of Christianity, they are sending a message of wholesale endorsement of the Christian faith in violation of the Establishment Clause.
The Mount Soledad Cross has a long history of controversy, but the latest round of litigation kicked off after the state of California got sick of arguing about it and transferred the land on which the monument stands to the federal government in 2006. The ruling in January spelled it out:
“… after 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.”
Last month, the court declined to review or reverse their earlier decision, which places this case in a prime position to move further up the chain and appear before the U.S. Supreme Court. Not all of the Circuit Judges agreed with the decision however, and Judge Carlos Bea wrote a lengthy dissent attacking the earlier decision and disingenuously suggests that a giant cross has nothing to do with Christianity.
Bea attacks the reliance on the three part test used in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under that test, government action has to meet the following three criteria to avoid violating the Establishment Clause:
- It must have a secular legislative purpose.
- It must not have the primary effect of either advancing or inhibiting religion.
- It must not result in an excessive government entanglement with religion.
Despite the always colorful potshots that conservative justices like Scalia have taken over the years at this standard (“like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence” 508 U.S. 384, 397 (1992)) the Lemon Test is good law.
Under this standard, the government action of acquiring a hunk of land with a giant cinderblock cross and maintaining the monument as-is seems like a cut and dry example of advancing the Christian religion and getting excessively entangled with it. Judge Bea pushes for an application of an exception to the Lemon Test from Van Orden v. Perry, 545 U.S. 677 (2005). In certain borderline cases where the religious iconography in question is part of a larger secular context, the court has to engage in a fact-intensive assessment of a host of factors, including the monument’s purpose, the perception of that purpose by viewers, and the monument’s history. The standard came from the Texas Ten Commandments sculpture case.
Although the Court in Van Orden explicitly eschewed the notion of simple formula in favor of an intensive fact-based analysis, Judge Bea helpfully condenses this analysis to look at the use and context of the Mount Soledad Cross.
Of course the earlier 9th Circuit decision considered all these factors in addition to their Lemon Test analysis and found that the Soledad Cross was inherently Christian in nature. Judge Bea argues that the fact that Cross is currently part of a veteran’s memorial and is festooned with plaques and American flags somehow negates the religious undertones as though crosses are not associated with memorials precisely because of the religious connotations of the afterlife.
Bea also argues that the history and context of the cross are secular, or at least as secular as a representation of the deity worshipped by the majority of Americans can be. By focusing narrowly on Mount Soledad Cross only as part of a memorial for the veterans since 2006 (when the U.S. government acquired the property) Judge Bea willfully ignores the broader history of the Cross which was a focus for annual Easter services for over forty years. He is a big fan of history when it comes to pointing out that the monument stood unchallenged until 1989 and that this long run without opposition somehow drains the cross of its Christian meaning.
It remains to be seen if the Supreme Court will grant cert for this case and if they do, whether the current lineup will be inclined to see the case the same way as Judge Bea but for now this particular victory in the war to keep church and state on opposite ends of the block has been reaffirmed.