Freethought San Marcos: A column
by LAMAR W. HANKINS
No issue, including abortion, engenders as much emotion as those involving Christian symbols – especially Christian crosses. Such is the case involving the Christian cross erected in San Diego’s Mount Soledad Public Park in 1954 as part of a veterans’ memorial and ordered removed in 2011 by the United States Court of Appeals for the Ninth Circuit. Those who understand the problem of state sponsorship of religion will instantly recognize that placing a Christian symbol – perhaps the symbol most evocative of that religion – in a public park is a religious entanglement that should be avoided. When honoring veterans is thrown into that mix, emotions make resolving the Constitutional issues even more difficult.
The facts about the Mount Soledad cross reveal how this matter could have been litigated for 23 years before a legal resolution. No small part of the blame for prolonging the litigation goes to four right-wing Republican congressmen. Mount Soledad is one of the highest points in the San Diego area (in the La Jolla community) at 822 feet above sea level. The current cross, set atop the mount, is 43 feet high, cast of concrete, and can be seen 12 miles away in downtown San Diego. The cross stands 29 feet high and 12 feet across, on a 14-foot high base, and weighs about 24 tons. It can be seen from two interstate highways. Maintenance has been paid for by the private Mount Soledad Memorial Association, along with some public funds.
A Vietnam veteran and atheist, Philip Paulson, first sued the City of San Diego over the cross in 1989. Paulson has since died. Before his death, he was joined by Steve Trunk, also a Vietnam veteran and atheist, as a plaintiff, along with Jewish War Veterans of the USA, who filed a separate suit. Their complaint was that the Christian cross made this a sectarian war memorial with an inherently religious message that created the appearance of honoring only those of a particular religion who served in the country’s military. As such, said the plaintiffs, it violated the Establishment Clause of the US Constitution as that clause is understood by the Supreme Court.
The Court of Appeals for the Ninth Circuit found in favor of the plaintiffs on January 4, 2011. On June 25, 2012, the Supreme Court announced that it would not hear the case, which leaves the Ninth Circuit’s decision intact, to be implemented by the district court. In its opinion, the Ninth Circuit recognized that a case like this one “represents the difficult and intractable intersection of religion, patriotism, and the Constitution.” Such cases, said the court, “are not painless for good people and their concerns.” Those people who oppose Jefferson’s “wall of separation” between church and state will need patience to understand completely the reasoning of the Ninth Circuit’s holding in favor of the Jewish War Veterans and the other plaintiffs because it is extensive and legally complex.
The facts involving the Mount Soledad cross and the efforts to avoid an Establishment Clause problem are convoluted. In 1913, a Christian or Latin cross was first erected on Mount Soledad. When that cross was destroyed by vandals ten years later (the Ku Klux Klan burned it to intimidate a black family that had recently moved into the area), a new cross was erected. That cross blew down in 1952. In 1954, the current cross was erected. It was dedicated as a memorial to members of the armed services and a tribute to God’s “promise of everlasting life,” a clear reference to Christian belief.
In 1989, the Soledad cross was first challenged as a violation of the California Constitution. The Federal District Court found that the cross violated the California Constitution’s “No Preference Clause,” and it issued an injunction against the cross. That injunction was upheld by the Ninth Circuit: “the Cross, to the extent that it could be characterized as a memorial, was ‘[a] sectarian war memorial carr[ying] an inherently religious message and creat[ing] an appearance of honoring only servicemen of [a] particular religion.’”
The City of San Diego then asked the voters to consider selling the land beneath the cross to the Mount Soledad Memorial Association. That ballot proposition was approved and the land was sold to the Association without soliciting offers or proposals from other buyers, but the District Court invalidated the sale, holding that the City’s action “created the appearance that the City preferred the Christian religion and that the primary purpose of the sale was to preserve the Cross.” A second sale to the Association was made by the City after soliciting bids. That sale was invalidated by the court because it “violated California’s No Preference Clause because it was structured to give ‘a direct, immediate, and substantial financial advantage to bidders who had the sectarian purpose of preserving the cross.’”
An agreement was then reached to move the Cross to a nearby church. Before that could happen, two members of Congress, Reps. Randall Cunningham and Duncan Hunter, inserted language in the 2005 omnibus budget bill to designate “the Mount Soledad property as a national veterans’ memorial and authorizing the federal government to accept its donation,” but the City declined to donate the property. The matter was then submitted to the voters in a referendum, which passed, but its implementation was enjoined by a state trial court.
Reps. Hunter, Darrell Issa, and Brian Bilbray introduced a bill authorizing the federal government to seize the Memorial by eminent domain. The bill passed and the federal government took possession of the Memorial in 2006. Paulson and Trunk filed suit against the City in federal court alleging violations of both the California Constitution and the US Constitution. Jewish War Veterans filed a separate suit. The two suits were consolidated by the district court, which denied the claims for relief. After a thorough analysis, the Ninth Circuit reversed the decision of the district court.
The basis for the Ninth Circuit’s decision was the Constitution’s Establishment Clause, which requires “governmental neutrality between religion and religion, and between religion and nonreligion.” The Circuit explained that the Constitution does not require absolute neutrality because that would evince a hostility toward religion in favor of the secular, which should not exist. It applied the Lemon Test, which is derived from a case known as Lemon v. Kurtzman: “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.” In addition, the Circuit applied the Supreme Court’s more nuanced analysis found in another case, Van Orden v. Perry (a case that upheld a Ten Commandments monument at the Texas State Capitol) which requires a “fact-intensive assessment of whether [such monuments or displays] are faithful to the underlying purposes of the Establishment Clause.”
The Circuit Court explained that its first task under both of the cases referenced is to “first inquire as to the purpose of the government action to determine whether it is predominantly secular in nature.” The Circuit found that Congress’s action “was primarily secular in its goals” because it sought to preserve a historically significant war memorial that honored veterans. Over the years since its dedication in 1954, many plaques honoring veterans had been added to the base of the monument, enhancing its purpose as a war memorial.
Next, the Circuit Court focused on the heart of the controversy: whether the primary effect of the Memorial “would be objectively reasonable for the government action to be construed as sending primarily a message of either endorsement or disapproval of religion.” It looked at “whether the Memorial is at odds with the underlying purposes of the First Amendment’s Religion Clauses. . . . Those clauses seek to assure the fullest possible scope of religious liberty and tolerance for all. They seek to avoid that divisiveness based upon religion that promotes social conflict․ They seek to maintain that separation of church and state that has long been critical to the peaceful dominion that religion exercises in this country․”
The Circuit Court examined all of the features of the Memorial, the significance of the Christian cross at the Memorial’s center, the history of the Memorial, the secularizing elements of it, the physical setting, and the way it is used. After considering all of these factors, the Circuit held: “Taking these factors into account and considering 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 Circuit Court found that the “Latin cross is the preeminent symbol of Christianity.” It is “not a symbol of any other religion.” Citing other authority, the court found that the cross has the effect of placing the weight of the government behind an effort to proselytize for the Christian religion to the exclusion of all others, and of no religion. The Christian cross is not a symbol of death of any other religion – “it memorializes the death of a Christian.” It carries an inherently Christian religious message and appears to honor only Christians who have served in our military.
The Circuit Court opinion relied on the evidence presented by an expert on war memorials offered by Jewish War Veterans, G. Kurt Piehler, a professor of history and Director of the Study of War and Society, University of Tennessee. Piehler provided unrebutted and extensive evidence “that the cross is not commonly used as a symbol to commemorate veterans and fallen soldiers in the United States,” that is, “the vast majority of war memorials in the United States do not include crosses.”
According to Piehler, while crosses among poppies are used extensively in fields in Europe to commemorate the war dead, Jewish soldiers are honored with Stars of David in those same fields. In addition, such crosses are used to memorialize the graves of individual soldiers, not as universal monuments. But it was the poppy, said Piehler, not the cross, that has become “the universal symbol emanating from those foreign wars. . . .”
The Circuit Court’s opinion explained the use of religious symbols in cemeteries honoring veterans of military service further:
“Significantly, the cross never became a default headstone in military cemeteries in the United States. A visitor to Arlington or another national cemetery does not encounter a multitude of crosses but rather the ‘flat upright stone monument[s]’ that mark the graves of individual soldiers. Symbols of faith are carved into the headstones, but those symbols are not restricted to crosses and now include everything from a Bahai nine-pointed star to a Wiccan pentacle. . . . 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.”
War-related monuments rarely incorporate a cross. When they do so, it is normally associated with a non-religious symbol, such as an eagle or shield, sometimes seen together, or other non-religious images. An obelisk is the most common symbol used alone in such memorials. Most modern memorials are secular in design, and take the form of buildings or other edifices dedicated as war memorials, or stone monuments that bear secular imagery.
The court noted, “Overwhelming evidence shows that the cross remains a Christian symbol, not a military symbol,” and that none of Piehler’s history of war or veteran memorialization was contested by the government. The government’s own expert conceded that “[o]ver the course of time, Mount Soledad and its cross became a generic Christian site.” The court found that “The record contains not a single clear example of a memorial cross akin to the Mount Soledad Cross.” In addition, evidence was presented that Easter services have been conducted frequently at the site, that the site was dedicated to Jesus Christ as well as fallen soldiers, that the cross is frequently identified as the “Easter Cross,” that the Association that erected it did so in part because it would be a worthy setting for this “symbol of Christianity,” and that during most of its existence, the memorial consisted only of the cross.
The decision of the court was supported, in part, by the uncontroverted evidence that the community of La Jolla had a long anti-semitic past lasting from the 1920s to 1970. Jews were not permitted to buy houses there under the authority of anti-semitic deed restrictions, as well as informal practices. The court reasoned that this factor alone could explain why complaints about the cross took so long to materialize.
The Circuit Court made clear its conclusion: “Our holding that the presence of the Mount Soledad Cross on federal land contravenes the Establishment Clause is driven by the history, setting, and appearance of that Cross–features that . . . sharply distinguish the Cross from other war memorials containing religious symbols. . . . 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. . . . [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.”
While many people, including the right-wing Republican congressmen who attempted to nullify this case, will be unable to accept the court’s conclusion, a reading of the entire opinion makes clear that the court was thorough in its analysis and carefully adhered to Supreme Court precedent in its decision. Exactly when the cross will be removed is not known, but a 99-year Constitutional violation is a stain on our Constitutional principles and should be remedied quickly.
© Lamar W. Hankins, Freethought San Marcos
LAMAR W. HANKINS is a former San Marcos city attorney.