Above the cliffs of San Diego, a 43-foot cross is a memorial to war veterans and the focus of a First Amendment controversy.
In addition to the cross, the Mount Soledad Veterans Memorial includes about 3,000 plaques that honor soldiers and hundreds of American flags. In the case City of San Diego v. Trunk, counsel of record Allyson Ho of Morgan, Lewis & Bockius is asking the Supreme Court to decide whether the monument violates the Establishment Clause because it “contains a cross among numerous other secular symbols of patriotism and sacrifice.”
The U.S. Court of Appeals for the 9th Circuit ruled in January 2011 that the memorial is unconstitutional because it “primarily conveys a message of government endorsement of religion.” Ho, who represents one of the petitioners, Mount Soledad Memorial Association, claims that the monument should remain as is because its context and history show that its main purpose is to honor veterans.
Ho’s firm collaborated with Liberty Institute, in Plano, Texas, on the petition for certiorari. Among the respondents are the Jewish War Veterans of the United States of America, Inc. and Steve Trunk, a Vietnam veteran who is not Christian.
The memorial, in La Jolla, Calif., has been embroiled in litigation for more than 20 years.
The cross originally stood alone, and, in 1954, the Mount Soledad Memorial Association dedicated it as a memorial to veterans of World Wars I and II and the Korean War. In 1989, after veterans sued the city to remove the cross from public land, the association began adding plaques, stone walls, American flags, Stars of David, smaller crosses and Medals of Honor to the site.
After a district court found that the display violated the No Preference Clause of the California Constitution and granted the injunction, Congress intervened. In 2006, the federal government acquired the memorial and designated it as a monument to honor all U.S. veterans. Congress wrote in a resolution that the cross is “fully integrated” into a “multi-faceted” memorial that “provides solace to the families and comrades of the veterans it memorializes.”
To Ho, this language shows that the monument does not violate the Establishment Clause because its main purpose is not to endorse religion. The 9th Circuit’s ruling runs counter to precedent that religious symbols can convey “primarily secular messages,” Ho wrote in the petition.
“The Supreme Court’s cases have made clear that the mere use of religious symbols in passive displays like the veterans memorial here does not run afoul of the Establishment Clause,” Ho said.
In Van Orden v. Perry, in 2005, Justice Stephen Breyer wrote in a concurrence that courts must weigh the nature of a religious symbol, the context in which it appears and its history in determining whether a monument is unconstitutional.
Both Ho’s petition and the 9th Circuit’s decision analyze these factors, but spin facts to reach opposite conclusions.
Ho argues that the features of the memorial as a whole show that it sends a “secular message of patriotism and sacrifice.” She also says the Court should only analyze the monument’s use since the federal government obtained it. No religious ceremonies have been held there during that time.
But the 9th Circuit called Mount Soledad “an outlier among war memorials” because the cross, which it said can be seen from “miles away” on Interstate 5, is “pivotal and imposing.” In looking at the history of the site throughout the twentieth century, the appellate decision found that Easter services were regularly held there.
Ho and the circuit court also disagree on whether the cross is a universal military symbol. To Ho, it is: Congress expressly deemed it so, and it is frequently used in headstones and military awards. To the 9th Circuit, the poppy is a more widely known war memorial and crosses can be “alienating” to non-Christian veterans.
Ho said the circuit court’s ruling could jeopardize other memorials that contain religious symbols such as the Argonne Cross Memorial at Arlington National Cemetery. “These memorials are about honoring veterans, not endorsing religion,” she said.
Ho wrote a friend-of-court brief on behalf of a veterans’ association in another Establishment Clause case, Salazar v. Buono. In a fractured opinion there in 2010, the Court found that the government acted within its right when it transferred federal land that had a memorial cross on it to a veterans’ group.
Ho said her father, who served in the Korean War, sparked her interest in veterans’ issues.
“It’s an honor and a privilege to be able to do what I can as an attorney to honor and remember our nation’s brave men and women that have served our country in uniform,” she said.
Jamie Schuman is a freelance writer and second-year student at The George Washington University Law School.