(Editor's note: The original version of this story, published Jan. 5, had errors in the headline and the first paragraph. They both originally stated that the 9th Circuit panel had ruled the cross must be removed. But the court actually ruled that the cross was unconstitutional and simply asked a lower federal court to come up with a way to remedy the constitutional violation. To reflect the ruling more accurately, therefore, we have changed the headline, modified the lead paragraph and added a new 17th paragraph.)
SAN DIEGO (ABP) — A federal appeals court has ruled that a four-story-tall cross atop an oceanside promontory in an exclusive San Diego suburb is unconstitutional as currently configured.
The Mt. Soledad Cross. (Mt. Soledad Memorial Association)
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The Jan. 4 decision in Jewish War Veterans v. City of San Diego is being hailed by church-state separationists and decried by conservative Christian groups, who have called it “a judicial slap in the face” of veterans. The cross has, in recent years, been re-fashioned as a war memorial.
“This is a flawed decision that not only strikes at the heart of honoring our military veterans, it reaches a faulty conclusion that this iconic memorial — part of the historic landscape of San Diego — is unconstitutional,” said Jay Sekulow, chief counsel for the conservative American Center for Law and Justice, in a blog entry. Sekulow’s group filed a friend-of-the-court brief in the case defending the cross.
But a unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals said that the Mount Soledad Cross’ presence on public land was a clear violation of the First Amendment’s ban on government establishment of religion.
“[C]onsidering the entire context of the memorial, the memorial today remains a predominantly religious symbol,” wrote Circuit Judge Margaret McKeown in the court’s opinion. “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 decision is the latest legal twist in a two-decade-long struggle over the monument, located prominently at the crest of an 800-foot hill in a city-owned park in the upscale La Jolla neighborhood. It includes multiple lawsuits and interventions by local and national politicians — including a 2006 bid by Congress and President George W. Bush to declare it a national veterans’ monument — attempting to keep the cross at its current spot.
The legal saga began in 1989, when a local atheist and Vietnam veteran, Phillip Paulson, sued the city for removal of the structure. He argued that the monument was intended as a religious symbol and that its prominence in a city park suggests unconstitutional government preference for Christianity. He died of cancer in 2007, but fellow opponents continued the case and related suits.
Attorneys for the city have argued the monolith is simply a monument to veterans. Although some version of a cross has stood on the spot since 1913, the present version was dedicated as a Korean War memorial on Easter Sunday in 1954. It gradually came to include plaques and walls with the names of casualties from the Korean conflict and other wars.
But the plaintiffs have argued that the private group that maintains the site did not add the commemorative elements until after controversy over the monument began in the 1980s and that the cross continues to play a prominent role in Christian worship services.
The 9th Circuit panel seemed to agree.
“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….," McKeown wrote. "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.”
The court also noted the La Jolla community’s history of anti-Semitism between the 1920s and 1970s.
“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,” McKeown wrote. “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.”
Conservative Christian groups urged Attorney General Eric Holder — whose Justice Department has argued on behalf of the cross due to its congressional designation — to ask the full 9th Circuit to re-hear the case and reverse it.
Tony Perkins of the Family Research Council released a statement Jan. 5 comparing attempts to remove the cross to the Afghan Taliban’s destruction of ancient statues they considered pagan in 2001.
“In 2001, when militants set out to bomb two colossal Buddhist statues that had stood untouched in Afghanistan for more than a thousand years, the global community rightly condemned the actions as religious barbarism,” he said. “Like the statues, the Mt. Soledad Cross is a monument to America’s cultural history, a symbol of our Christian heritage and a tribute to brave Americans who laid down their lives in our nation's cause. Their memories should not be besmirched.”
The decision returns the case to a lower federal court to determine whether the memorial can be modified to pass constitutional muster. However, the 9th Circuit panel did not suggest any specific remedies.
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Robert Marus is managing editor and Washington bureau chief for Associated Baptist Press.
Previous ABP stories:
Controversial Soledad cross remains after Calif. court declines appeal (2/26/2007)
San Diego cross to remain, pending appeal (7/10/2006)
House passes bill attempting to intervene in cross dispute (1/20/2006)