by Melanie Thwing

Jewish War Veterans v. United States of America
(9th Circuit Court of Appeals, January 4, 2011)

In La Jolla, California at the top of Mount Soledad stands a 43 ft cross and veterans’ memorial that was constructed by the Mount Soledad Memorial Association (the Association). This area overlooks the main highways in and out of the San Diego area, and the cross can be seen prominantly. La Jolla itself has a long history of anti-Semitism, to the point that Jews were not allowed to move in because of formal and informal housing restrictions until the 1960’s. The site has played home to a cross since 1913, with the one seen today being constructed in 1954. Although originally used for church services mixed with a few memorial services, in the 1990’s a more intensive war memorial complete with concentric walls and black stone plaques were added.

In 1989 two veterans sued the city wanting the cross to be moved from city land. This suit was ultimately successful, the court finding the cross violated the No Preference Clause found in the California Constitution. In response to this, the city ultimately decided to authorize selling a 22 sq. ft. parcel of land to the Association. By 1994 the land had been sold, but the sale was invalidated because the city failed to consider other buyers.

The city restarted the process, and the land ultimately went to the Association in 1998. Again, this sale was invalidated by the court because it gave a direct benefit to bidders who wanted to preserve the cross. An agreement was then reached to move the cross to a neighboring church. By 2006, after much debate about the land and who to sell to, the federal government seized the land by eminent domain, which both the House and Senate approved.

The Act that authorized the transfer reads, “ in order to preserve a historically significant war memorial, designated the Mt. Soledad Veterans Memorial in San Diego, California as a national memorial honoring veterans of the United States Armed Forces… [t]he United States has a long history and tradition of memorializing members of the Armed Forces who die in battle with a cross or other religious emblem of their faith, and a memorial cross is fully integrated as the centerpiece of the multi-faceted Mt. Soledad Veterans Memorial that is replete with secular symbols.”

Soon after this, the Jewish War Veterans and a couple of veterans individually filed suit in district court stating that the cross violated the Establishment Clause of the First Amendment. The district court applied the Lemon and Van Orden tests. Lemon requires a detrmination whether a governmental action advances religion, or causes excessive entanglement with religion. Van Orden simply establishes an exception to Lemon that would allow some religious displays that have a historical or secular message in a non-religious context. An example cited is a large display containing a Christmas tree as well as a menorah, which was found to be uniting.   Summary judgment for the government was granted in district court, the court stating that the memorial did not violate the Establishment Clause.  The Jewish War Veterans’ soon appealed to the 9^TH Circuit Court of Appeals.

The Court of Appeals held that the government’s acquisition of the Memorial was secular because it sought to preserve a historically significant war memorial. They also found that the Act in general did not link to the cross, nor does it require the continued presence of the cross. It only requires that the site is maintained as a memorial.

The second question is whether it is reasonable to believe the government action can be construed as endorsing or disapproving of a religion(s). The court considers the meaning of the Latin cross, the history, secular elements, and usage. After testimony from a Jewish War Veterans’ expert, the 9^th Circuit found that the Latin cross is not a broadly understood symbol of military service, but rather holds a Christian meaning. The universal symbol for wars has been the poppy, and even in cemeteries such as Arlington flat upright stones mark graves. Further, almost no memorials across the country feature the cross.

Also, in the historical context, it is necessary to determine whether the memorial endorses Christianity. The site was originally chosen because it was a “fitting place to erect an emblem of faith,” and there was no indication that the cross was meant as a memorial until 1989, when litigation over the land began. Further, the cross itself was dedicated during an Easter ceremony, but only two Veterans day celebrations before 1989 had occurred. A reasonable observer would hold that it is a religious and holy object, and the recent use as a war memorial cannot overcome this.

Finally, although there are engraved plaques for fallen soldiers, these fall in the shadow of the cross. The court finds that the way the cross overshadows the other aspects of the memorial makes it religious in purpose. Also, the cross (and only the cross) can be seen from miles around, and in this context does not present as a memorial but rather a religious symbol.

The 9^th Circuit concluded that the distinctiveness of the cross sends a strong message of endorsements toward the Christian beliefs. After taking everything in to account, the memorial does violate the Establishment Clause of the First Amendment, and the district court decision is remanded for further proceedings. It is important to note that this remand does not require the cross to be taken down, but rather for the issue to be dealt with by proper remedies.