Court Orders Changes to ‘Religious’ War Memorial

(CN) - A 43-foot cross that stands atop a hill overlooking San Diego "conveys a message of government endorsement of religion," despite the fact that it has been the centerpiece of a war memorial since the late 1980s, the 9th Circuit ruled Tuesday.

For the second time in 20 years the Pasadena-based federal appeals panel found that the much-debated cross on top of La Jolla's Mount Soledad is unconstitutional because it gives the impression that it is honoring only Christian soldiers.

The appellate court came to this conclusion in 1993 when it ruled that the cross violated the California Constitution.

Now, after 17 years and a highly publicized intervention by the U.S. Congress in 2004, the circuit has ruled that the cross violates the federal Constitution's Establishment Clause. The three-judge panel reversed a California district court's finding that that the memorial did not seek to advance the Christian religion and that Congress had only secular ambitions in dedicating the site of the cross as a national memorial honoring veterans.

"After examining the entirety of the Mount Soledad Memorial in context - having considered its history, its religious and nonreligious uses, its sectarian and secular features, the history of war memorials and the dominance of the cross - we conclude that the memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause," M. Margaret McKeown wrote in a carefully worded, 50-page opinion. "This result does not mean that the memorial could not be modified to pass constitutional muster nor does it mean that no cross can be part of this veterans' memorial. We take no position on those issues."

First erected in the La Jolla section of San Diego in 1913, the cross has been an object of controversy, lawsuits and local initiatives for at least 20 years. After the federal government took possession of the land, the Jewish War Veterans of the United States, individual veterans and the American Civil Liberties Union filed the present action in 2006. U.S. District Judge Larry Burns granted summary judgment to the government in 2008.

While the appellate panel did not specifically order removal of the cross in its reversal of Burns published Tuesday, the court found that the cross's history - and La Jolla's documented history of anti-Semitism - belie Congress' assertion that the memorial, with the cross at its center, is primarily secular.

"For most of its history, the cross served as a site for annual Easter services," McKeown wrote for the appeals court. "Only after the legal controversy began in the late 1980s was a plaque added designating the site as a war memorial, along with substantial physical revisions honoring veterans. It was not until the late 1990s that veterans' organizations began holding regular memorial services at the site."

The ruling states, moreover, that the war memorial is "an outlier among war memorials" in that it includes a cross that is much bigger and more imposing than all of its other elements. Historically in America, the vast majority of war memorials have not included crosses, the panel found.

"The use of such a distinctively Christian symbol to honor all veterans sends a strong message of endorsement and exclusion," McKeown wrote. "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."

The panel concluded that while Congress' intentions in taking over the cross and making it a federal war memorial may have been largely secular, the message that it sends is religious and exclusionary.

The Latin cross is not and never has been considered to be a general symbol of military service in America; it is the symbol of one religion, the panel found.

This, combined with the fact that Jews "were effectively barred from living in La Jolla by a combination of formal and informal housing restrictions" until the late 1950s, gives the cross a religious context that cannot be avoided.

"In conducting this inquiry, we learned that the memorial has a long history of religious use and symbolism that is inextricably intertwined with its commemorative message," McKeown wrote. "This history, combined with the history of La Jolla and the prominence of the cross in the memorial, leads us to conclude that a reasonable observer would perceive the memorial as projecting a message of religious endorsement, not simply secular memorialization."

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