The 9th Circuit Court of Appeals today ruled La Jolla's famous Mount Soledad cross to be in violation of the establishment clause of the Constitution.
According to its opinion, the 9th Circuit found that "in adopting the First Amendment, the Founders were prescient in recognizing that, without eschewing religion, neither can the government be seen as favoring one religion over another. The balance is subtle but fundamental to our freedom of religion."
The ruling overturned a 2008 ruling by U.S. Federal Judge Larry Alan Burns, which said the cross could remain standing because "the memorial at Mount Soledad, including its Latin cross, communicates the primarily nonreligious messages of military service, death and sacrifice," Burns wrote. "As such, despite its location on public land, the memorial is Constitutional."
The current cross, which is the third to be erected since the first was constructed in 1913, is touted by free-speech supporters to be a war memorial. Others, including the Jewish War Veterans of the United States of America, several local residents, and the American Civil Liberties Union, say the cross is an unmistakable representation of the Christian religion.
"We are pleased that the court recognized the fundamental principle barring the government from playing favorites with religion," said Daniel Mach, director of the ACLU program on freedom of religion and belief, in a press release. "Unlike religious symbols on individual headstones that appropriately reflect the personal faiths of fallen American soldiers, when the government displays a giant sectarian symbol as a national war memorial, it sends a divisive message valuing the sacrifices of some service members above all others."
The cross atop Mount Soledad has been a source of litigation since 1989 when plaintiff Philip K. Paulson filed suit against the city of San Diego. The suit alleged the cross' presence violated both the California Constitution and the First Amendment in that its presence failed to uphold the separation of church and state.
Mt. Soledad Memorial Association CEO and Chairman William Kellogg said he was surprised by the court's ruling.
"I was surprised in light of the Mojave Desert case which found that a cross in the Mojave National Preserve was constitutional," he said. "There's a lot of similarity between that cross and this one."
The case in question, Salazar v. Bruno, was filed by the ACLU in 2001 on behalf of war veteran Frank Bruno, who felt the cross was a blatant and offensive symbol of religion. In 2009, the 9th Circuit ruled in favor of the ACLU.
The case was appealed to the Supreme Court. In April 2010, the Supreme Court remanded the case back to the 9th Circuit, saying it had failed to take the cross' historical value into consideration. The matter is still pending.
ACLU Legal Director of San Diego and Imperial Counties David Blair-Loy, who was among the team of attorneys arguing on behalf of the plaintiffs, said the cases are in no way similar.
"The cases are very different, and the facts of this case are different," Blair-Loy said. "The cross in that case is a smaller cross out in the middle of the desert where no one could see it. Here, we have a 43-foot tall cross in the middle of La Jolla that dominates Mount Soledad and it's visible for miles around to thousands of people. In this case, there were facts which showed it was expressly dedicated to God and Christ and that it is explicit of a strong religious history."
While unable to speak to whether the government will appeal today's ruling to the Supreme Court, Blair-Loy is content with the victory.
"We think this is an important decision for the fundamental principal of freedom of religion," he said. "We believe it's important to honor those who have served our country and feel it's best to honor everyone who has served, not just Christians."
