Latin cross on federal land of war memorial an impermissible endorsement of religious belief

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 9TH 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 9th 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 9th 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.

Hermosa Beach (CA) total ban on tattoo parlors held to violate First Amendment

by Gary Taylor

Anderson v. City of Hermosa Beach (CA)
(Federal 9th Circuit Court of Appeals, September 9, 2010)

Anderson sought to establish a tattoo parlor in the City of Hermosa Beach (city), but the Hermosa Beach Municipal Code effectively bans tattoo parlors. Anderson sued the city alleging that the code provision is facially unconstitutional under the First and Fourteenth Amendments. The parties filed cross-motions for summary judgment, and the district court denied Anderson’s motion and granted the city’s motion. Anderson appealed the decision to the 9th Circuit Court of Appeals.

Because of the potential health concerns implicated by tattooing, the State of California requires “[e]very person engaged in the business of tattooing . . . [to] register . . . with the county health department of the county in which that business is conducted.”   The city lies within the County of Los Angeles (County). There are nearly 300 tattoo establishments in the County and over 850 tattooists. However, the County has only one inspector monitoring the parlors. Many tattoo parlors have never been inspected and are subject to no regulations other than the requirement to register with the County. Ostensibly because of the health concerns associated with tattooing and the lack of adequate County inspection the Hermosa Beach Municipal Code does not list tattoo parlors as a permitted use in any district. Indeed, on November 20, 2007, the City’s Planning Commission adopted a resolution against amending the Code to permit tattoo parlors.

The Court of Appeals began its analysis with a recognition that while pure speech is entitled to First Amendment protection unless it falls within one of the “categories of speech . . . fully outside the protection of the First Amendment,” (obscenity, conduct intending to express an idea is constitutionally protected only if it is “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments,” which means that “[a]n intent to convey a particularized message [is] present, and . . . the likelihood [is] great that the message w[ill] be understood by those who view it.” Even where conduct expressive of an idea is protected by the First Amendment, “[t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.”  Accordingly, the Court’s task was to determine whether tattooing is (1) purely expressive activity or (2) conduct that merely contains an expressive component.

The Court concluded that the city’s ban on tattoo parlors was facially unconstitutional because tattooing is purely expressive activity, rather than conduct expressive of an idea.  “Tattoos are generally composed of words, realistic or abstract images, symbols, or a combination of these, all of which are forms of pure expression that are entitled to full First Amendment protection.”  It noted that the principal difference between a tattoo and a pen-and-ink drawing that would unquestionably be considered purely expressive, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. This distinction has no significance in terms of the constitutional protection afforded the tattoo.

The Court further found that the tattooing process (which is prevented from occurring because of the ban on tattoo parlors) is similarly purely expressive activity.   “Neither the Supreme Court nor our court has ever drawn a distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded. Although writing and painting can be reduced to their constituent acts, and thus described as conduct, we have not attempted to disconnect the end product from the act of creation.

Finally, the Court concluded that the business of tattooing qualifies as purely expressive activity rather than conduct with an expressive component, and is therefore entitled to full constitutional protection.  It cited cases that established that “the degree of First Amendment protection is not diminished merely because the protected expression is sold rather than given away.”

Having concluded that the tattoo, the tattooing process, and the business of tattooing are purely expressive activities, the Court then considered whether the city’s total ban on tattoo parlors was a reasonable time, place and manner restriction.  The Court noted particular concern with laws that foreclose an entire medium of expression, because “by eliminating a common means of speaking, such measures can suppress too much speech.” The Court concluded that the total ban was substantially broader than necessary to achieve the city’s significant health and safety interests, and it entirely foreclosed a unique and important method of expression.

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