October 16, 2011
No Rehearing for Mt. Soledad Cross Case
The Ninth Circuit on Friday denied a petition for rehearing and for rehearing en banc of unanimous ruling by a three-judge panel on January 4, 2011, in Jewish War Veterans v. City of San Diego, holding that the Mt. Soledad cross violated the Establishment Clause.
The Mt. Soledad cross, the centerpiece of a veterans memorial in San Diego, has been the subject of lengthy litigation under the Establishment Clause and the California Constitution's No Preference Clause. The cross is a mammoth, 43-foot structure that sits atop Mt. Soledad, surrounded by plaques honoring veterans, U.S. flags, and other secular symbols. Here's a picture:
The earlier three-judge panel exhaustively surveyed the history of the cross and the site as it exists today. It ruled that while there are some indicia of a secular purpose, and while the site includes some secular symbols, "[t]aking these factors into account and considering the entire context of the Memorial, the Memorial today remains a predominantly religious symbol." The panel ruled that the cross violated the Establishment Clause under either Lemon v. Kurzman or Van Orden v. Perry.
The Ninth Circuit declined to rehear the case over a sharp dissent by Judge Bea and joined by Judges O'Scannlain, Tallman, Callahan, and Ikuta. Judge Bea would have ruled that the cross did not violate the Establishment Clause under Van Orden alone. In particular, Judge Bea said that the government's use of the symbol was secular, the context is secular, and the history--especially how long it has stood without being challenged--was secular.
If the government appeals, the case would give the Supreme Court a good opportunity to clarify Lemon and Van Orden--when exactly to use one or the other, and more precisely what Van Orden means.
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