By George Kane

In mid-December, US District Court Judge Larry Burns issued a decision in the case Trunk v. San Diego that may open the final chapter for the Mount Soledad Cross after more than twenty years of litigation. Judge Burns ordered the cross to be removed within ninety days, although the order was stayed pending appeal.

Burns had ruled in 2008 that the cross served the secular purpose of promoting patriotism, but the Ninth Circuit Court of Appeals disagreed and remanded the case back to trial court. The case was appealed to the US Supreme Court, which refused to grant certiorari. In his concurrence to rejecting the case, Justice Alito wrote that the absence of a final judgment prevented the court from considering the constitutionality of the memorial, which is “a question of substantial importance.” Burns’ order to remove the cross provides the “final judgment” that will force the Supreme Court to get involved and clarify the guidelines used to decide the constitutionality of religious symbols on government property.

The Burns decision was a brief four pages. It noted that in remanding the case back to him for reconsideration, the Ninth Circuit Court had opened the question of whether there might be a way to resolve the case by modifying the monument in some way. “Nonetheless,” Burns wrote, “other deliberate language in the opinion makes it clear that removal of the large, historic cross is the only remedy that the Ninth Circuit conceives will cure the constitutional violation.”

The analysis of case law to which the Supreme Court will have to respond lies in the circuit court’s 2011 decision. That decision was based upon the two Supreme Court tests for public monuments violating the Establishment Clause, Lemon and Van Orden.

Lemon requires the court to decide if, in the words of Vernon v. City of Los Angeles, “it would be objectively reasonable for the government action to be construed as sending primarily a message of either endorsement or disapproval of religion.” As Justice O’Conner noted in Lynch v. Donnelly, this is especially true when religious endorsement tells non-adherents “that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members․”
Van Orden requires the court to determine whether the memorial is at odds with the underlying purposes of the First Amendment’s religion clauses. The decision observes:

[The religion 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.”

In applying earlier Supreme Court rulings, the Ninth Circuit Court wrote, “In our analysis, we must consider fine-grained, factually specific features of the Memorial.” The court also wrote, “We conduct our inquiry from the perspective of an ‘informed and reasonable observer’ who is familiar with the ‘history of the government practice at issue.’”

For most of its history, the forty-three foot cross was the only component of what the government claims is a memorial to soldiers who died in the Korean War. Secular components were added during litigation, but the cross can be seen throughout the area and is the only element of the monument that is visible from outside the park. The uses of the monument were overwhelmingly for religious services, and only rarely and incidentally for memorializing war dead.

The circuit court responded to the argument that no one objected to the cross for four decades by noting that an illegal conspiracy of realtors and government had barred Jews from buying homes in La Jolla at least through the 1960s. The lack of early litigation is merely evidence of the success of that policy of exclusion which, to some, the cross symbolizes.

If the case does end up in the Supreme Court, it will be difficult for the Justices to refute the Ninth Circuit Court’s analysis. The Lemon and Van Orden guidelines compel the conclusion that the Soledad Cross violates the Establishment Clause. The danger is that they will just draw up new criteria based upon their ideology rather than precedent.