FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE TRUNK,
Plaintiff,
and
JEWISH WAR VETERANS OF THE No. 08-56415
UNITED STATES OF AMERICA, INC.;
RICHARD A. SMITH; MINA SAGHEB; D.C. Nos.
JUDITH M. COPELAND, 3:06-cv-01597-
LAB-WMC
Plaintiffs-Appellants,
3:06-cv-01728-
v. LAB-WMC
CITY OF SAN DIEGO; UNITED STATES
OF AMERICA; ROBERT M. GATES,
Secretary of Defense,
Defendants-Appellees.
175
176 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
STEVE TRUNK, PHILIP K. PAULSON,
Plaintiffs-Appellants,
and
RICHARD A. SMITH; MINA SAGHEB;
JUDITH M. COPELAND; JEWISH WAR No. 08-56436
VETERANS OF THE UNITED STATES OF
D.C. Nos.
AMERICA, INC.,
3:06-cv-01597-
Plaintiffs,
LAB-WMC
v. 3:06-cv-01728-
CITY OF SAN DIEGO; UNITED STATES LAB-WMC
OF AMERICA; MOUNT SOLEDAD OPINION
MEMORIAL ASSOCIATION, Real
parties in interest; ROBERT M.
GATES, Secretary of Defense, in
his official capacity,
Defendants-Appellees,
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued December 9, 2009
Submitted December 30, 2010
Pasadena, California
Filed January 4, 2011
Before: Harry Pregerson, M. Margaret McKeown, and
Richard A. Paez, Circuit Judges.
Opinion by Judge McKeown
180 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
COUNSEL
John David Blair-Loy, ACLU Foundation of San Diego and
Imperial Counties, San Diego, California; Matthew T. Jones
[argued], Adam Raviv, Wilmer Hale LLP, Washington, DC;
Daniel Mach, American Civil Liberties Union, Washington,
DC; James E. McElroy, Del Mar, California, for the
plaintiffs-appellants.
George Frederick Schaefer, City Attorney’s Office, San
Diego, California, for defendant-appellee City of San Diego.
Kathryn E. Kovacs [argued], U.S. Department of Justice,
Washington, DC; Thomas C. Stahl, U.S. Attorney’s Office,
Washington, DC, for defendants-appellees United States of
America and Robert M. Gates.
OPINION
McKEOWN, Circuit Judge:
The forty-three foot cross (“Cross”) and veterans’ memo-
rial (“Memorial”) atop Mount Soledad in La Jolla, California,
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 181
have generated controversy for more than twenty years. Dur-
ing this time, the citizens of San Diego (where La Jolla is
located), the San Diego City Council, the United States Con-
gress, and, on multiple occasions, the state and federal courts
have considered its fate. Yet no resolution has emerged.
Indeed, we believe that no broadly applauded resolution is
possible because this case represents the difficult and intracta-
ble intersection of religion, patriotism, and the Constitution.
Hard decisions can make good law, but they are not painless
for good people and their concerns.
Much lore surrounds the Cross and its history. But the
record is our guide and, indeed, except for how they charac-
terize the evidence, the parties essentially agree about the his-
tory. A cross was first erected on Mount Soledad in 1913.
That cross was replaced in the 1920s and then blew down in
1952. The present Cross was dedicated in 1954 “as a reminder
of God’s promise to man of everlasting life and of those per-
sons who gave their lives for our freedom . . . .” The primary
objective in erecting a Cross on the site was to construct “a
permanent handsome cast concrete cross,” but also “to create
a park worthy of this magnificent view, and worthy to be a
setting for the symbol of Christianity.” For most of its history,
the Cross served as a site for annual Easter services. 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.1
More fundamentally, this war memorial—with its imposing
Cross—stands as an outlier among war memorials, even those
incorporating crosses. Contrary to any popular notion, war
memorials in the United States have not traditionally included
or centered on the cross and, according to the parties’ evi-
1
We include as Appendix A photographs from the record that depict the
Cross up close and from a distance.
182 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
dence, there is no comparable memorial on public land in
which the cross holds such a pivotal and imposing stature,
dwarfing by every measure the secular plaques and other
symbols commemorating veterans.
The Latin cross, long acknowledged as a preeminent Chris-
tian symbol, remains, as a towering forty-three foot structure,
the dominant feature of the Memorial. As we concluded the
last time we considered this matter, albeit under the California
Constitution, “[this] sectarian war memorial carries an inher-
ently religious message and creates an appearance of honoring
only those servicemen of that particular religion.” Ellis v. City
of La Mesa, 990 F.2d 1518, 1527 (9th Cir. 1993). But we
revisit the question in this case because the Cross, originally
on city land, was transferred to the federal government
through a 2006 congressional initiative. This suit requires us
to consider whether the Memorial, with the Cross as its defin-
ing feature, violates the First Amendment to the federal Con-
stitution.
Simply because there is a cross or a religious symbol on
public land does not mean that there is a constitutional viola-
tion. Following the Supreme Court’s directive, we must con-
sider the purpose of the legislation transferring the Cross, as
well as the primary effect of the Memorial as reflected in con-
text, history, use, physical setting, and other background.
Although we conclude that Congress did not harbor a sectar-
ian purpose in establishing the Memorial in 2006, the resolu-
tion of the primary effect of the Memorial is more nuanced
and is driven by the factual record. We do not look to the
sound bites proffered by both sides but instead to the exten-
sive factual background provided in the hundreds of pages of
historical documents, declarations, expert testimony, and pub-
lic records. Here, a fact-intensive evaluation drives the legal
judgment.
The Supreme Court’s framework for evaluating monuments
on public lands and for resolving Establishment Clause cases
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 183
under the First Amendment leads us to conclude that the dis-
trict court erred in declaring the Memorial to be primarily
non-sectarian, and granting summary judgment in favor of the
government and the Memorial’s supporters. We are not faced
with a decision about what to do with a historical, longstand-
ing veterans memorial that happens to include a cross. Nor
does this case implicate military cemeteries in the United
States that include headstones with crosses and other religious
symbols particular to the deceased. Instead we consider a site
with a free-standing cross originally erected in 1913 that was
replaced with an even larger cross in 1954, a site that did not
have any physical indication that it was a memorial nor take
on the patina of a veterans memorial until the 1990s, in
response to the litigation. We do not discount that the Cross
is a prominent landmark in San Diego. But a few scattered
memorial services before the 1990s do not establish a histori-
cal war memorial landmark such as those found in Arlington
Cemetery, Gettysburg, and the Vietnam Veterans Memorial in
Washington, D.C. Resurrection of this Cross as a war memo-
rial does not transform it into a secular monument.
We acknowledge the good intentions and heartfelt emo-
tions on all sides of this dispute, and recognize the sincere
anguish that will be felt regardless of whether we affirm or
reverse the district court. We also acknowledge the historical
role of religion in our civil society. In no way is this decision
meant to undermine the importance of honoring our veterans.
Indeed, there are countless ways that we can and should honor
them, but without the imprimatur of state-endorsed religion.
At the same time, in adopting the First Amendment, the
Founders were prescient in recognizing that, without eschew-
ing religion, neither can the government be seen as favoring
one religion over another. The balance is subtle but funda-
mental to our freedom of religion.
BACKGROUND
Mount Soledad is an 822-foot hill in the La Jolla commu-
nity of San Diego, California, between Interstate 5 and the
184 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
Pacific Ocean. There has been a Latin cross atop Mount Sole-
dad since 1913. After the first cross was destroyed by vandals
in 1923, a new cross was erected. That cross stood until it
blew down in 1952. The current Cross was erected in 1954
and was dedicated as a memorial to American service mem-
bers and a tribute to God’s “promise of everlasting life.” The
Cross is quite large—twenty-nine feet high and twelve feet
across—stands atop a fourteen foot high base, and weighs
approximately twenty-four tons. As a result, the Cross is visi-
ble from miles away and towers over the thousands of drivers
who travel daily on Interstate 5 below. The Mount Soledad
Memorial Association (“the Association”), the civic organiza-
tion that erected the Cross, has largely paid for the Cross’s
maintenance, though some public funds have been expended
as well. Paulson v. City of San Diego, 294 F.3d 1124, 1125
(9th Cir. 2002) (en banc).
Although the Cross stood alone for most of its history, it
has, since the late 1990s, become the centerpiece of a more
extensive war memorial. This Memorial now features six con-
centric walls around the base of the Cross and approximately
2,100 black stone plaques honoring individual veterans, pla-
toons, and groups of soldiers. Brick paving stones also honor
veterans; twenty-three bollards, or posts, honor community
and veterans’ organizations; and an American flag flies from
a large flagpole. Until the events leading up to this suit, the
Memorial stood on land belonging to the City of San Diego
(“the City”).
The Memorial has been the subject of contentious litigation
for the last two decades. In 1989, two Vietnam veterans sued
the City, seeking to enjoin it from allowing the Cross to
remain on city land. Murphy v. Bilbray, 782 F. Supp. 1420,
1424 (S.D. Cal. 1991). Ultimately, the district court enjoined
the display of the Cross—which, at the time, stood alone—as
a violation of the No Preference Clause of the California Consti-
tution.2 Id. at 1438. We affirmed the injunction in Ellis, 990
2
The No Preference Clause provides that “[f]ree exercise and enjoyment
of religion without discrimination or preference are guaranteed.” Cal.
Const. art. I, § 4.
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 185
F.2d at 1527-28, holding that the Cross, to the extent that it
could be characterized as a memorial, was “[a] sectarian war
memorial carr[ying] an inherently religious message and
creat[ing] an appearance of honoring only . . . servicemen of
[a] particular religion.” Id. at 1527. We did not reach the issue
of whether the Cross violated the federal Constitution’s Estab-
lishment Clause.
In response to the injunction, the City submitted a ballot
initiative known as Proposition F to authorize the sale of a
twenty-two square foot parcel of land sitting directly beneath
the Cross to the Association. Seventy-six percent of those vot-
ing approved the measure. In October 1994, the City sold the
land to the Association without soliciting offers or proposals
from any other prospective buyers. See Paulson, 294 F.3d at
1126. The district court invalidated the sale, however, holding
that the City’s failure to consider other prospective buyers
created the appearance that the City preferred the Christian
religion and that the primary purpose of the sale was to pre-
serve the Cross. Murphy v. Bilbray, No. 90-134 GT, 1997 WL
754604, *10-11 (S.D. Cal. Sept. 18, 1997). The City
responded by soliciting bids for a second land sale, ultimately
selling the land to the Association in September 1998. The
Association then proceeded to modify the property to incorpo-
rate elements directly honoring veterans.
After further litigation, our court, sitting en banc, held that
the 1998 sale violated California’s No Preference Clause
because it was structured to give “a direct, immediate, and
substantial financial advantage to bidders who had the sectar-
ian purpose of preserving the cross.” Paulson, 294 F.3d at
1133. Following that decision, the parties then reached a set-
tlement that would move the Cross to a neighboring church.
In July 2004, the City Council passed a resolution to compel
the City to accept the settlement if voters did not approve
Proposition K, which would have required a third sale of the
land to the highest bidder. City voters rejected Proposition K.
186 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
Soon after the failure of Proposition K, two local members
of Congress, then-Representative Randy Cunningham and
Representative Duncan Hunter, inserted a rider into the 2005
omnibus budget bill designating the Mount Soledad property
as a national veterans’ memorial and authorizing the federal
government to accept its donation. Consolidated Appropria-
tions Act, Pub. L. No. 108-447, § 116, 118 Stat. 2809, 3346-
47 (codified at 16 U.S.C. § 431 note). The Thomas More Law
Center,3 whose West Coast Director, Charles LiMandri, was
a signatory of the ballot argument in favor of Proposition K,
lobbied local members of Congress to intervene. President
George W. Bush signed the omnibus bill into law on Decem-
ber 8, 2004.
The City Council declined to donate the Mount Soledad
property to the federal government.4 A new organization
formed by LiMandri and others launched a referendum peti-
tion to “save the Mount Soledad cross” via transfer to the fed-
eral government. The City Council rescinded its decision and
submitted the donation question to the voters as Proposition
A. Proposition A garnered seventy-six percent of the vote, but
a state trial court enjoined its implementation. See Paulson v.
Abdelnour, 51 Cal. Rptr. 3d 575, 585 (Cal. Ct. App. 2006).
While the appeal of the state court injunction was pending,
the federal district court issued an order directing the City to
remove the Cross within ninety days or pay a daily fine of
$5,000. Paulson v. City of San Diego, No. 89-0820 GT, 2006
WL 3656149, at *2 (S.D. Cal. May 3, 2006). The City
appealed and sought a stay pending appeal, which our court
denied. Justice Kennedy then granted the City’s stay applica-
tion. See San Diegans for the Mt. Soledad Nat’l War Mem’l
v. Paulson, 548 U.S. 1301, 1302 (2006).
3
The Thomas More Law Center is a “not-for-profit public interest law
firm dedicated to the defense and promotion of the religious freedom of
Christians, time-honored family values, and the sanctity of human life.”
4
The then-City Attorney formally opined that the donation would vio-
late the federal and state constitutions.
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 187
In June 2006, Representatives Hunter, Issa, and Bilbray
introduced H.R. 5683 (“the Act”), which proposed to seize the
Memorial by eminent domain.5 The House approved the bill
by a vote of 349 to 74. 152 Cong. Rec. H5434 (daily ed. July
19, 2006). The Senate approved the measure by unanimous
consent.
The Act authorized the land transfer “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 . . . .” Id. at H5422, § 2(a). In support of the
acquisition, Congress found that the Memorial has stood as a
tribute to U.S. veterans for over fifty-two years, id. § 1(1), and
“now serves as a memorial to American veterans of all wars,”
id. § 1(2). The Act also declared that “[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.” Id. § 1(3).
The Act required the Department of Defense, which has since
assigned the duties to the Navy, to manage the property and
enter a memorandum of understanding with the Association
for the Memorial’s “continued maintenance.” Id. § 2(c).6
The federal government took possession of the Memorial in
August 2006. Pub. L. No. 109-272, § 2(a), 120 Stat. 770
5
LiMandri stated publicly that he helped draft the legislation, a fact that
the government contests. The Thomas More Law Center also lobbied Sen-
ator Jeff Sessions, the sponsor of the Senate version of the bill, for his sup-
port.
6
This court dismissed the City’s appeal of the district court’s order as
moot in light of the Act. Paulson v. City of San Diego, 475 F.3d 1047,
1048 (9th Cir. 2007). The California Court of Appeal also reversed the
trial court’s injunction of Proposition A, holding that the City’s effort to
donate the memorial to the United States did not violate the state or fed-
eral Constitutions. Abdelnour, 51 Cal. Rptr. 3d at 589-603.
188 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
(2006). That same month, Steve Trunk and Philip Paulson
(now deceased) filed suit against the City and the United
States in district court, alleging violations of the U.S. and Cal-
ifornia Constitutions.7 Jewish War Veterans, which describes
itself as “the oldest active national veterans’ service in Ameri-
ca” and as a group that “engages in extensive advocacy in
support of religious liberty,” also filed suit against the Secre-
tary of Defense, complaining that the display of the Cross vio-
lated the Establishment Clause. The district court consolidated
the two cases.8
In 2008, the district court denied Jewish War Veterans’s
motion for summary judgment and granted the government’s
motion for summary judgment. Applying the Supreme
Court’s frameworks set forth in both Lemon v. Kurtzman, 403
U.S. 602 (1971), and Van Orden v. Perry, 545 U.S. 677
(2005), the district court held that Congress had acted with a
secular purpose in acquiring the Memorial and that the
Memorial did not have the effect of advancing religion. This
appeal followed.
ANALYSIS
I. THE LEMON AND VAN ORDEN FRAMEWORKS
We review de novo the district court’s decision on cross
motions for summary judgment. See Donohue v. Quick Col-
lect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010). “We must
determine, viewing the evidence in the light most favorable to
. . . the nonmoving party, whether there are any genuine
7
Trunk later filed an amended complaint seeking, among other things,
a declaration that the Act was void ab initio. The district court held that
Trunk lacked standing to challenge the Act, dismissed that claim for lack
of jurisdiction, and dismissed the City as a party.
8
We refer to Trunk, Paulson, and Jewish War Veterans collectively as
“Jewish War Veterans,” and to the United States and the Secretary of
Defense collectively as “the government.”
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 189
issues of material fact and whether the district court correctly
applied the [relevant] substantive law.” Olsen v. Idaho State
Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). We have
jurisdiction to review the district court’s denial of the Jewish
War Veterans’s summary judgment motion because the dis-
trict court considered cross motions for summary judgment
and granted the government’s motion. The district court’s
grant of summary judgment was a final decision, giving us
jurisdiction. See Abend v. MCA, Inc., 863 F.2d 1465, 1482
n.20 (9th Cir. 1988).
[1] The First Amendment provides that “Congress shall
make no law respecting an establishment of religion.” U.S.
Const. amend. I. As the Supreme Court has explained, the
“touchstone” of Establishment Clause jurisprudence is the
requirement of “ ‘governmental neutrality between religion
and religion, and between religion and nonreligion.’ ” McCr-
eary County v. ACLU, 545 U.S. 844, 860 (2005) (quoting
Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). However,
because “neutrality” is a general principle, it “cannot possibly
lay every issue to rest, or tell us what issues on the margins
are substantial enough for constitutional significance.” McCr-
eary, 545 U.S. at 876; see also Van Orden, 545 U.S. at 699
(Breyer, J., concurring in the judgment) (“[W]here the Estab-
lishment Clause is at issue, tests designed to measure ‘neutral-
ity’ alone are insufficient.”).
In particular, we do not apply an absolute rule of neutrality
because doing so would evince a hostility toward religion that
the Establishment Clause forbids. Thus the Court in Mc-
Creary approvingly cited Justice Harlan’s observation that
“ ‘neutrality’ . . . is not so narrow a channel that the slightest
deviation from an absolutely straight course leads to condem-
nation” by the First Amendment. McCreary, 545 U.S. at 876
(quoting Sherbert v. Verner, 374 U.S. 398, 422 (1963) (Har-
lan, J., dissenting)); see also School Dist. of Abington Twp. v.
Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring)
(cautioning that an “untutored devotion to . . . neutrality” can
190 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
lead to “a brooding and pervasive devotion to the secular and
a passive, or even active, hostility to the religious”). We must
undertake a more nuanced analysis.
The Supreme Court has articulated two related constructs
that guide our analysis: the test set forth in Lemon, which—
through various twists and turns—has long governed Estab-
lishment Clause claims, and the analysis for monuments and
religious displays more recently articulated in Van Orden.
The Lemon test asks whether the action or policy at issue (1)
has a secular purpose, (2) has the principal effect of advanc-
ing religion, or (3) causes excessive entanglement with reli-
gion. Lemon, 403 U.S. at 612-13. In recent years, the Supreme
Court essentially has collapsed these last two prongs to ask
“whether the challenged governmental practice has the effect
of endorsing religion.” Access Fund v. U.S. Dep’t of Agric.,
499 F.3d 1036, 1043 (9th Cir. 2007) (reviewing cases).
Although Lemon has been strongly criticized, the Supreme
Court has never overruled it, and in fact applied the Lemon
test to a Ten Commandments display in an opinion issued the
same day as Van Orden. McCreary, 545 U.S. at 859-64; see
also Card v. City of Everett, 520 F.3d 1009, 1016 (9th Cir.
2008) (discussing the Supreme Court’s criticism and use of
the Lemon test).
In Van Orden, the Court declined to apply Lemon to a Ten
Commandments monument on the grounds of the Texas State
Capitol. Addressing whether that monument violated the
Establishment Clause, the plurality struggled with reconciling
“the strong role played by religion and religious traditions
throughout our Nation’s history” with the constitutional sepa-
ration of church and state. Van Orden, 545 U.S. at 683. The
plurality concluded that the Lemon test was “not useful in
dealing with the sort of passive monument that Texas ha[d]
erected on its Capitol grounds.” Id. at 686. Instead, its analy-
sis focused on “the nature of the monument and . . . our
Nation’s history.” Id. Taking into consideration the role of
God and the Ten Commandments in the nation’s founding
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 191
and history, id. at 686-87, 689-90, the monument’s passive
use, and its “undeniable historical meaning,” id. at 690, the
plurality concluded that the display passed constitutional mus-
ter, id. at 692.
As we have recognized, Justice Breyer’s concurrence pro-
vides the controlling opinion in Van Orden. Card, 520 F.3d
at 1017-18 n.10. Justice Breyer envisioned a set of “difficult
borderline cases” like the Texas Capitol monument for which
there could be “no test-related substitute” Lemon or otherwise
—“for the exercise of legal judgment.” Van Orden, 545 U.S.
at 700 (Breyer, J., concurring in the judgment). Rather than
requiring the application of a test, Justice Breyer concluded,
displays like the Texas monument demand a fact-intensive
assessment of whether they are faithful to the underlying pur-
poses of the Establishment Clause. See id. He explained that
this flexible assessment entails a range of factors, including
the monument’s purpose, the perception of that purpose by
viewers, the extent to which the monument’s physical setting
suggests the sacred, and the monument’s history. See id. at
701-03. Notably, this inquiry does not dispense with the
Lemon factors, but rather retains them as “useful guideposts.”
Id. at 700. Justice Breyer’s analysis thus incorporated many
of the same factors that figure in a Lemon analysis—in partic-
ular, the predominant purpose of the monument and its effect
on viewers—while refusing to be bound to any lock-step for-
mula. See id. at 701-04.
Van Orden expressly establishes an “exception” to the
Lemon test in certain borderline cases regarding the “constitu-
tionality of some longstanding plainly religious displays that
convey a historical or secular message in a non-religious con-
text.” Card, 520 F.3d at 1016. Unfortunately, Justice Breyer
did not explain in detail how to determine whether a case was
borderline and thus less appropriate for the typical Lemon
analysis. Card—the only Ninth Circuit case to date to apply
the Van Orden exception—considered a monument that was
almost identical to the monument in Van Orden and therefore
192 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
provides little additional guidance. See Card, 520 F.3d at
1018 (“We cannot say how narrow or broad the ‘exception’
may ultimately be . . . . However, we can say that the excep-
tion at least includes the display of the Ten Commandments
at issue here.”).
[2] Ultimately, we need not resolve the issue of whether
Lemon or Van Orden controls our analysis of the Memorial.
Both Lemon and Van Orden require us to determine Con-
gress’s purpose in acquiring the Memorial and to engage in a
factually specific analysis of the Memorial’s history and set-
ting. On the detailed record here, which includes extensive
evidence relevant to each of the factors in Van Orden and to
the purpose and effect prongs of Lemon, both cases guide us
to the same result.
II. CONGRESSIONAL PURPOSE IN ACQUIRING THE MEMORIAL
Under both Lemon and Van Orden, we first inquire as to
the purpose of the government action to determine whether it
is predominantly secular in nature. See Van Orden, 545 U.S.
at 701-02; Lemon, 403 U.S. at 612. We hold that Congress’s
acquisition of the Memorial was predominantly secular in its
goals.
As an initial matter, Jewish War Veterans argues that, to
determine purpose, we need look no further than the Cross
itself. In its view, “the government action itself besp[eaks] the
purpose” because the Latin cross is the “preeminent symbol”
of Christianity. This argument is at bottom one regarding the
Memorial’s predominant effect, and we consider it more
appropriate to address in our discussion of effects below. See
infra Section III.
The Supreme Court explained in McCreary that the pur-
pose inquiry does not call for “any judicial psychoanalysis of
a drafter’s heart of hearts.” McCreary, 545 U.S. at 862.
Rather, “[t]he eyes that look to purpose belong to an objective
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 193
observer, one who takes account of the traditional external
signs that show up in the text, legislative history, and imple-
mentation of the statute, or comparable official act.” Id. (inter-
nal quotation marks omitted). Although the secular purpose
must “be genuine, not a sham,” id. at 864, when a statute is
at issue, we must defer to Congress’s stated reasons if a “plau-
sible secular purpose . . . may be discerned from the face of
the statute,” Mueller v. Allen, 463 U.S. 388, 394-95 (1983).
[3] The purpose of Congress’s acquisition of the Memorial
was predominantly secular in nature. The Act sought “to pre-
serve a historically significant war memorial . . . as a national
memorial honoring veterans of the United States Armed
Forces.” Pub. L. No. 109-272, § 2(a). As the district court
noted, the statute is “not directed to the cross per se, nor does
it require the continued presence of the cross as part of the
memorial; it simply requires the Mount Soledad site be main-
tained as a veterans’ memorial.”
The Act’s statement of purpose likely ends the inquiry. See
Mueller, 463 U.S. at 394-95. Nevertheless, the Act is arguably
ambiguous to the extent that it seeks “to preserve a histori-
cally significant war memorial.” Pub. L. 109-272 § 2(a)
(emphasis added). In Paulson, the case invalidating the City’s
1998 land sale to the Association, we held that only the Cross
on Mount Soledad bears historical significance. Paulson, 294
F.3d at 1132 n.5 (emphasis added). Under Paulson, the Act
could be read to aim at preserving the Cross, which would
arguably make its purpose predominantly religious.
[4] But even assuming that the Act is ambiguous, the legis-
lative history reflects Congress’s predominantly secular pur-
pose in acquiring the Memorial.9 Representative Hunter, for
9
These legislative recitations do not bind us as to our evaluation of the
actual history and chronology of the Cross. They are simply instructive as
to congressional perspective and purpose. We must evaluate the Cross
itself on the basis of the record before us, which includes not only the Act,
but also hundreds of pages of documents about the Cross’s history and set-
ting and about the use of crosses in war memorials more generally that
were not before Congress when it acquired the Memorial.
194 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
example, described the Cross as “not only a religious sym-
bol,” but also “a venerated landmark beloved by the people of
San Diego for over 50 years” and “a fitting memorial to all
persons who have served and sacrificed for our Nation as
members of the Armed Forces.” 152 Cong. Rec. H5423 (daily
ed. July 19, 2006); see also id. at H5422-02 (stating that
Mount Soledad “is without question a world-class memorial,
dedicated to all of those, regardless of race, religion[,] or
creed, who have served our armed services”). Representative
Issa similarly stated that the Memorial “was intended to do
what it does for the vast majority of San Diegans and people
who come to our fair city. It honors our war veterans for the
sacrifice they made.” Id. at H5424. According to Representa-
tive Issa, the acquisition was “consistent with how we as
Americans have honored our war dead and those who have
given in service to our country” and advanced the “freedom
for people to observe their God as they chose fit.” Id.
Representative Bilbray argued for the Act on the grounds
of religious tolerance and the memorial’s secular historical
significance. He cited the presence of “many religious sym-
bols on public lands” in San Diego County and argued that
“this is not about religion; it is about the tolerance of our heri-
tage and the memorials to those who have fought for our heri-
tage across the board.” Id. at H5425.
[5] Finally, although Senator Sessions introduced the Sen-
ate bill as intended “to preserve the cross that stands at the
center of Mt. Soledad Veterans Memorial . . . that is under
attack by the ACLU,” he underlined that the Cross was “part
of a memorial that has secular monuments also.” 152 Cong.
Rec. S8364 (daily ed. July 27, 2006). Taken together, the
floor statements support the text’s demonstration of Con-
gress’s predominantly secular purpose in acquiring the
Memorial.
Jewish War Veterans’s arguments to the contrary do not
change our view. In particular, the evidence of the role of
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 195
Christian advocacy organizations in the Act’s passage is not
probative of Congress’s objective. Although such advocacy
can form part of the context for determining an act’s purpose,
see, e.g., Epperson, 393 U.S. at 107-09 & n.16, we must take
into account the often complex, attenuated, and mediated rela-
tionship between advocacy and legislation. Although the
advocacy by Christian organizations may have been a contrib-
uting factor to the Act’s drafting and passage, the record does
not establish that the sectarian goals of the advocates can be
reasonably attributed to Congress as a whole. In the end,
“what is relevant is the legislative purpose of the statute, not
the possibly religious motives of the legislators who enacted
the law.” Mergens, 496 U.S. at 249 (emphases omitted).10 In
crediting congressional purpose, we underscore, however, that
these congressional statements reflect congressional sentiment
and are not necessarily reflective of the factual record before
us. We turn to the actual record to assess the primary effect
of the Memorial.
III. THE EFFECT OF THE MEMORIAL
[6] The heart of this controversy is the primary effect of
the Memorial. The question is, under the effects prong of
Lemon, whether “it would be objectively reasonable for the
10
It bears noting that we do not adopt the district court’s inference of a
secular purpose from the overwhelming majority support for the Act and
relative absence of debate over its passage. Majority support for a measure
indicates simply that—majority support. It does not illuminate whether the
measure approved has a secular or religious purpose. See McCreary, 545
U.S. at 884 (O’Connor, J., concurring) (noting that “we do not count heads
before enforcing the First Amendment”).
The district court also cited the heterogeneity of religions in Congress
as a basis for inferring secular purpose. We cannot credit this speculation
as a foundation for our decision. Resolution does not rest on a popularity
contest about the Cross. Importantly, nothing in the record suggests that
the legislators voted based on their personal religious beliefs. Congress’s
religious profile, without more, is an insufficient basis to infer its predomi-
nant purpose.
196 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
government action to be construed as sending primarily a
message of either endorsement or disapproval of religion.”
Vernon v. City of Los Angeles, 27 F.3d 1385, 1398 (9th Cir.
1994). By “endorsement,” we are not concerned with all
forms of government approval of religion—many of which
are anodyne—but rather those acts that send the stigmatic
message to nonadherents “ ‘that they are outsiders, not full
members of the political community, and an accompanying
message to adherents that they are insiders, favored members
. . . .’ ” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309-
10 (2000) (quoting Lynch v. Donnelly, 465 U.S. 668, 688
(1984) (O’Connor, J., concurring)).
Although it is often difficult to pinpoint “a community
ideal of reasonable behavior” in an area where communities
are so often divided in their views, see Capitol Square Review
and Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995)
(O’Connor, J., concurring in part and concurring in the judg-
ment) (internal quotation marks omitted), we conduct our
inquiry from the perspective of an “informed and reasonable”
observer who is “familiar with the history of the government
practice at issue,” Kreisner v. City of San Diego, 1 F.3d 775,
784 (9th Cir. 1993).
The analysis required by Van Orden is similar. Under Van
Orden, we are required to exercise our legal judgment to
determine whether the Memorial is at odds with the underly-
ing purposes of the First Amendment’s Religion Clauses. See
545 U.S. at 700 (Breyer, J., concurring in the judgment).
Those clauses
seek to assure the fullest possible scope of religious
liberty and tolerance for all. They seek to avoid that
divisiveness based upon religion that promotes social
conflict . . . . They seek to maintain that separation
of church and state that has long been critical to the
peaceful dominion that religion exercises in this
country . . . .
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 197
Id. at 698 (internal citations and quotation marks omitted).
In our analysis, we must consider fine-grained, factually
specific features of the Memorial, including the meaning or
meanings of the Latin cross at the Memorial’s center, the
Memorial’s history, its secularizing elements, its physical set-
ting, and the way the Memorial is used. See, e.g., id. at 700-
02; County of Allegheny v. ACLU Greater Pittsburgh Chap-
ter, 492 U.S. 573, 598-602 (1989). The government contends
that these factors demonstrate that the Memorial’s primary
effect is patriotic and nationalistic, not religious. We disagree.
Taking these factors into account and considering the entire
context of the Memorial, the Memorial today remains a pre-
dominantly religious symbol. The history and absolute domi-
nance of the Cross are not mitigated by the belated efforts to
add less significant secular elements to the Memorial.
A. THE LATIN CROSS
[7] We begin by considering the potential meanings of the
Latin cross that serves as the centerpiece and most imposing
element of the Mount Soledad Memorial. We have repeatedly
recognized that “[t]he Latin cross is the preeminent symbol of
Christianity.” Buono v. Norton, 371 F.3d 543, 544-45 (9th
Cir. 2004) (internal quotation marks omitted); accord Separa-
tion of Church & State Comm. v. City of Eugene, 93 F.3d 617,
620 (9th Cir. 1996) (per curiam) (“SCSC”); Carpenter v. City
& County of San Francisco, 93 F.3d 627, 630 (9th Cir. 1996);
Ellis, 990 F.2d at 1525, 1527. The other courts of appeals that
have considered challenges to Latin crosses have unani-
mously agreed with our characterization of the cross. See
Robinson v. City of Edmond, 68 F.3d 1226, 1232 (10th Cir.
1995); Murray v. City of Austin, 947 F.2d 147, 149 (5th Cir.
1991); Harris v. City of Zion, 927 F.2d 1401, 1403 (7th Cir.
1991); ACLU v. City of St. Charles, 794 F.2d 265, 271 (7th
Cir. 1986); see also Gonzales v. North Township, 4 F.3d
1412, 1418 (7th Cir. 1993) (“[W]e are masters of the obvious,
and we know that the crucifix is a Christian symbol.”); Fried-
198 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
man v. Bd. of County Comm’rs, 781 F.2d 777, 779 (10th Cir.
1985) (en banc) (recounting testimony concerning the Chris-
tian nature of the cross); ACLU v. Raburn County Chamber
of Commerce, Inc., 698 F.2d 1098, 1110-11 (11th Cir. 1983)
(same); Jewish War Veterans of the U.S. v. United States, 695
F. Supp. 3, 12 (D.D.C. 1988) (“Running through the decisions
of all the federal courts addressing the issue is a single thread:
that the Latin cross . . . is a readily identifiable symbol of
Christianity.”).
[8] The cross is also “exclusively a Christian symbol, and
not a symbol of any other religion.” Buono, 371 F.3d at 545.
Thus, “[t]here is no question that the Latin cross is a symbol
of Christianity, and that its placement on public land . . . vio-
lates the Establishment Clause.” SCSC, 93 F.3d at 620; see
also County of Allegheny, 492 U.S. at 661 (Kennedy, J., dis-
senting) (stating that “the permanent erection of a large Latin
cross on the roof of city hall” “would place the government’s
weight behind an obvious effort to proselytize on behalf of a
particular religion”); American Atheists, Inc. v. Duncan, 616
F.3d 1145, 1159-60 (10th Cir. 2010) (“[T]here is little doubt
that [a state] would violate the Establishment Clause if it
allowed a private group to place a permanent unadorned
twelve-foot cross on public property without any contextual
or historical elements that served to secularize the message
conveyed by such a display.”).
This principle that the cross represents Christianity is not
an absolute one. In certain circumstances, even a quintessen-
tially sectarian symbol can acquire an alternate, non-religious
meaning. For example, a red Greek cross on a white back-
ground is so closely identified with the American Red Cross
that it has largely shed any religious symbolism. City of St.
Charles, 794 F.2d at 272. Notably the Red Cross cross does
not include the Latin cross’s iconic horizontal arm that is
shorter than the vertical arm. The cross can also have local-
ized secular meanings. Because the name of Las Cruces, New
Mexico means “The Crosses,” “it is hardly startling that [the
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 199
city] would be represented by a seal containing crosses.”
Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1035 (10th
Cir. 2008). In Las Cruces, the cross possesses a local “sym-
bolism [that] is not religious” but civic. See id.; see also Mur-
ray, 947 F.2d at 155 (upholding the use of a part of Stephen
F. Austin’s coat of arms, including a Latin cross, in the insig-
nia of the City of Austin).11 The cross can even be forced to
serve non-religious ends by a small group: As Justice Thomas
has recognized, “[t]he erection of . . . a cross [by the Ku Klux
Klan] is” “not a Christian [act]” but rather “a political act” of
“intimidation and harassment.” Pinette, 515 U.S. at 771
(Thomas, J., concurring). Nonetheless, the Latin cross
remains an iconic Christian symbol.
B. CROSSES AS WAR MEMORIALS
[9] The relevant question in this case is whether, as the dis-
trict court concluded, the Latin cross has a “broadly-
understood ancillary meaning as a symbol of military service,
sacrifice, and death.” Our prior cases counsel caution in
ascribing this meaning to the cross. We have, in fact, previ-
ously held that the Mount Soledad Cross contravened the No
Preference Clause of the California state constitution even
while recognizing that the Cross is “dedicated to veterans of
World Wars I & II.” Ellis, 990 F.2d at 1527. We have simi-
larly rejected the view that a cross erected on public land in
Oregon conveyed a secular message simply because it was
identified as a war memorial. See SCSC, 93 F.3d at 619; id.
at 625-26 (O’Scannlain, J., concurring); see also Ellis, 990
F.2d at 1525 (“We find unpersuasive the fact that the cross
was built and dedicated as a memorial to a private individual
11
The argument that a cross has a historic connection cannot, of course,
be treated as “an argument which [can] always ‘trump’ the Establishment
Clause[ ] because of the undeniable significance of religion and religious
symbols in the history of many [American] communities.” Robinson, 68
F.3d at 1232; see also Zion, 927 F.2d at 1414-15 (holding that even a city
with “a unique history” “may not honor its history by retaining [a] bla-
tantly sectarian seal, emblem, and logo”).
200 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
. . . . This alone cannot transform the cross into a secular
memorial.”).
[10] The reasoning behind our prior decisions is straight-
forward. “A sectarian war memorial carries an inherently reli-
gious message and creates an appearance of honoring only
those servicemen of that particular religion.” Ellis, 990 F.2d
at 1527. Thus, the use of exclusively Christian symbolism in
a memorial would, as Judge O’Scannlain has put it, “lead
observers to believe that the City has chosen to honor only
Christian veterans.” SCSC, 93 F.3d at 626 (O’Scannlain, J.,
concurring). And insofar as the cross is “not a generic symbol
of death” but rather “a Christian symbol of death that signi-
fies or memorializes the death of a Christian,” American
Atheists, 616 F.3d at 1161, a reasonable observer would view
a memorial cross as sectarian in nature.
Nothing in the record suggests that our reasoning in SCSC
and Ellis was mistaken or that the Latin cross possesses an
ancillary meaning as a secular war memorial. The Jewish War
Veterans have provided two expert declarations from G. Kurt
Piehler, a professor of history and Director of the Study for
War and Society at the University of Tennessee. Those decla-
rations provide extensive evidence that the cross is not com-
monly used as a symbol to commemorate veterans and fallen
soldiers in the United States.12 Piehler’s history is not rebutted
12
The district court “discounted” Piehler’s statements on the grounds
that the “declaration circumscribe[d] its focus on an individual element of
the memorial” and “fail[ed] to fully consider other well-recognized mean-
ings of the Latin cross.” In “discounting” the expert’s opinion, the district
court was not gatekeeping but weighing the evidence, indeed inserting evi-
dence, which is improper on summary judgment. See Sluimer v. Verity,
Inc., 606 F.3d 584, 587 (9th Cir. 2010). The district court’s reasons for
minimizing the weight of the expert’s conclusions were also erroneous and
not a fair reading of the evidence. The district court simply assumed that
the Latin cross has an ancillary meaning as a war memorial and leveraged
that assumption to reject Piehler’s declarations and other contrary evi-
dence in the record. In doing so, the district court failed to consider the
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 201
by the government’s experts, and the record supports Pie-
hler’s conclusion that the vast majority of war memorials in
the United States do not include crosses. We accordingly
recount Piehler’s history at some length.
Piehler’s declarations address both the individual commem-
oration of soldiers in national cemeteries and the large num-
ber of monuments that stand in tribute to groups of soldiers
or to the veterans of particular wars. Piehler recounts that the
first national cemeteries were established after the Civil War
and were deliberately devoid of religious symbols. Even
today, the only religious symbol that can be found in Civil
War cemeteries is the Southern cross of honor, which has
been allowed since 1930 on headstones built in memory of
Confederate soldiers. The graves of soldiers who died before
World War I and are buried in national cemeteries are simi-
larly marked “only [by] the soldier’s name, his unit, and his
date of death.”
Military cemeteries have not, of course, remained entirely
free of religious symbolism. Most famously, American sol-
diers who fell in battle during World War I and World War
II are movingly memorialized with “thousands of small
crosses in foreign fields” in Europe and the Pacific. Salazar
v. Buono, 130 S. Ct. 1803, 1820 (2010) (plurality op.). But
while the image of row upon row of small white crosses
amongst the poppies remains an exceedingly powerful one,
not all soldiers who are memorialized at those foreign battle-
fields are honored with crosses. Jewish soldiers are instead
evidence in the light most favorable to Jewish War Veterans before grant-
ing summary judgment to the government. See id. More specifically, the
district court erroneously branded Piehler’s declarations as conclusory,
ignoring the detailed listings and historical analysis provided in the record.
At the same time, the district court accepted without comment the state-
ments of the government’s expert, Professor Linenthal, who offered a
number of wholly conclusory statements without historical reference or
supporting facts.
202 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
commemorated with Stars of David. American Atheists, 616
F.3d at 1161. The cross was a marker of an individual grave,
not a universal monument to the war dead. And tellingly, the
universal symbol emanating from those foreign wars is the
poppy, not the cross.
Significantly, the cross never became a default headstone in
military cemeteries in the United States. A visitor to Arlington
or another national cemetery does not encounter a multitude
of crosses but rather the “flat upright stone monument[s]” that
mark the graves of individual soldiers. Symbols of faith are
carved into the headstones, but those symbols are not
restricted to crosses and now include everything from a Bahai
nine-pointed star to a Wiccan pentacle. See id. The cross, in
other words, has never been used to honor all American sol-
diers in any military cemetery, and it has never been used as
a default gravestone in any national cemetery in the United
States.13 Whatever memory some may have of rows of crosses
as the predominant symbol for honoring veterans is not
reflected in this record.
Crosses have also been incorporated only rarely into monu-
ments commemorating groups of soldiers. Piehler’s declara-
tions reveal that few war memorials were built in the
antebellum United States, and those that were constructed
most frequently took the form of an obelisk. Many more
monuments—at least 3,500—were built to commemorate the
13
The article cited by the district court in support of its view that the
cross is a generic war memorial reinforces this point. The article discusses
a memorial display set up by anti-war protestors on the beach at Ocean-
side, California. The memorial does include a large number of crosses—
each dedicated to an American soldier who died in Iraq—but those crosses
represent dead Christian soldiers. As the article cited by the district court
notes, the display also includes “a handful of Buddhist, Hindu, Muslim
and Jewish symbols” presumably representing fallen soldiers of those
faiths. Bruce V. Bigelow, Beach exhibit calls attention to fallen, San
Diego Union-Tribune Nov. 11, 2007, available at http://www.
signonsandiego.com/uniontrib/20071111/news_1mc11crosses.html.
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 203
Civil War. Only 114 of these 3,500 monuments include some
kind of cross, however, and the cross is generally “subordi-
nated to symbols that emphasize American nationalism and
sacrifice of the fallen.” The memorial to Major General John
Sedgwick at West Point, for example, includes a cross, but
that cross is set off by “an eagle perched on a shield” and is
overshadowed by a large statue of Sedgwick.
In the late nineteenth and early twentieth centuries, the
number of crosses used in memorials increased slightly.
Crosses and other religious symbols nevertheless were “sel-
dom . . . dominant” and “usually [remained] subordinated to
a commemoration of American nationalism.” For instance,
the first chapel dedicated to the Civil War opened in Arling-
ton National Cemetery in 1920—but the chapel is a small
basement room annexed to a much larger outdoor auditorium.
This trend of emphasizing the secular nature of commemo-
ration continued throughout the twentieth century. Monu-
ments erected in honor of World War I soldiers remained
predominantly secular, with statues of doughboys providing
perhaps the most common theme. Some of these monuments
were later updated to commemorate World War II veterans as
well. And many memorials constructed to remember those
who fought in both world wars are, in fact, not stone monu-
ments but rather secular “living memorials”—parks, hospitals,
and other facilities that were built both to honor veterans and
for daily use. The City of San Diego itself built in 1950, and
still operates, a War Memorial Auditorium in Balboa Park
that consists of “3,150 square feet of wood dance floor and a
stage[ ] plus two smaller classrooms.” No cross or religious
symbol is part of the memorial. The use of such living memo-
rials has lately declined in favor of traditional stone monu-
ments, but newer monuments remain secular in their imagery
—as illustrated by the most recent additions to the National
Mall in Washington, D.C., including the memorials to the
Korean War and World War II.
204 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
On the basis of this detailed history, Piehler concludes that
“the overwhelming majority of war memorials in the United
States . . . avoid using religious symbols and inscriptions.” In
particular, he states that “[t]here are few precedents for use of
the Latin Cross in war memorials on public land,” and “when
war memorials use religious imagery, [that imagery] generally
[is] subordinated to symbols and inscriptions that commemo-
rate American nationhood.”
None of Piehler’s history is contested by the government.
The government instead cites to a small number of crosses
that are incorporated into war memorials, but these examples
do not create a material issue of fact concerning the meaning
of the Latin cross. Nor do those few examples fairly lead to
the conclusion that the cross has become a secularized repre-
sentation of war memory. Overwhelming evidence shows that
the cross remains a Christian symbol, not a military symbol.
Several of the crosses the government references are parts
of much larger secular or multi-faith complexes. The most
significant examples are located in Arlington National
Cemetery—the Canadian Cross of Sacrifice, the Argonne
Cross, and a cross commemorating the Mexican Civil War.
None of these crosses is a prominent or predominant feature
of the cemetery, and the overall image and history of this mil-
itary burial ground are not founded on religion. All three
crosses stand among, if not immediately next to, the countless
headstones of soldiers buried in Arlington and alongside a
large number of other monuments that do not incorporate reli-
gious imagery.14 Headstone after headstone, punctuated by the
eternal flame at President Kennedy’s grave site, represent the
imagery of Arlington. Much the same can be said for the Irish
Brigade Monument and the monument to the 142nd Pennsyl-
vania Infantry. Those monuments, which stand at Gettysburg
National Military Park, are also surrounded by other statues
14
The same is true of the French Cross at Cypress Hill National Ceme-
tery, which, as its name suggests, commemorates French soldiers.
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 205
and monuments—including over 100 other monuments hon-
oring Pennsylvania troops alone—that do not feature the cross.15
The Arlington and Gettysburg crosses are, in other words,
non-dominant features of a much larger landscape providing
a “context of history” and memory that overwhelms the sec-
tarian nature of the crosses themselves. Van Orden, 545 U.S.
at 702 (Breyer, J., concurring in the judgment). These crosses
are not comparable to the Mount Soledad Cross, which domi-
nates the small park of which it is the centerpiece and can be
seen from miles away.
We do not question or address the constitutionality of the
crosses at Arlington Cemetery and Gettysburg. While we con-
clude on this record that the Latin cross is a sectarian symbol,
many monuments that include sectarian symbols do not have
the primary effect of advancing religion. See Part III.C.1,
infra. Our holding that the presence of the Mount Soledad
Cross on federal land contravenes the Establishment Clause is
driven by the history, setting, and appearance of that Cross—
features that, as we discuss below, sharply distinguish the
Cross from other war memorials containing religious sym-
bols.
Aside from the Arlington and Gettysburg memorials, only
two other crosses that serve as war memorials in the United
States are mentioned in the record. One, the Mojave Cross,
now stands on private land. See Buono, 130 S. Ct. at 1811,
1815-21 (rejecting a challenge to the “statute that would
transfer [that] cross and the land on which it stands to a pri-
vate party”). The other cross referenced, the Memorial Peace
Cross in Bladensburg, Maryland, may or may not stand on
public land. The record does not inform us.
Prior decisions inform us of just a handful of other stand-
alone crosses that have been dedicated as war memorials on
15
The Irish Brigade Monument cross is a Celtic cross and may celebrate
the Irish origin of the soldiers instead of their religion.
206 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
public land. These prior decisions do little to establish that the
cross is a prevalent symbol to commemorate veterans. In two
of the four cases we found in which crosses were used as war
memorials, the crosses in question were only designated as
war memorials after the start of litigation. See, e.g., SCSC, 93
F.3d at 618 (relating that Latin cross designated as a war
memorial following rulings by the state courts that the cross
violated the federal and state constitutions); Greater Houston
Chapter of the ACLU v. Eckels, 589 F. Supp. 222, 225, 234-
35 (S.D. Tex. 1984) (noting that three crosses and a Star of
David were rededicated as a war memorial after litigation
commenced). In a third case, the plaintiffs similarly alleged
that the cross in question was rededicated as a memorial after
a complaint from a Jewish naval officer that the cross violated
the doctrine of separation of church and state, while the
defendants claimed the cross had always been a memorial.
Jewish War Veterans, 695 F. Supp. at 5. We could locate only
one case in which it was undisputed that the cross in question
was dedicated as a war memorial from the outset. Gonzales,
4 F.3d at 1414, 1421-23 (holding unconstitutional a crucifix
in a public park “to honor the heroic deeds of servicemen who
gave their life in battle”). In light of the multitude of war
memorials in the United States, however, these few examples
do not cast doubt on our conclusion and that of the Jewish
War Veterans’s expert, that the cross has not been a universal,
or even a common, feature of war memorials.16
16
The parties and amici mention several other memorials, none of which
raises a material question of fact as to whether the cross possesses an
ancillary meaning as a war memorial. Three of these monuments—the
Cape Henry Memorial Cross, the statue of Father Junipero Serra in the
U.S. Capitol, and a statue at Cabrillo National Monument in San Diego—
are not war memorials but tributes to the memory and achievements of
particular (Christian) Europeans. Another, the Navy memorial at Fort
Rosecrans, does not include a cross. Two others stand on property owned
by Christian churches. Finally, the government and amici name several
other war memorials without offering a description of the memorials’
physical characteristics. These passing references provide no basis for any
comparison with the Cross on Mount Soledad.
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 207
[11] In sum, the uncontested facts are that the cross has
never been used as a default grave marker for veterans buried
in the United States, that very few war memorials include
crosses or other religious imagery, and that even those memo-
rials containing crosses tend to subordinate the cross to patri-
otic or other secular symbols. The record contains not a single
clear example of a memorial cross akin to the Mount Soledad
Cross. On another record, we might reach a different result,
but on the basis of the evidence here, we can only conclude
that the Latin cross does not possess an ancillary meaning as
a secular or non-sectarian war memorial. There is simply “no
evidence . . . that the cross has been widely embraced by”—
or even applied to—“non-Christians as a secular symbol of
death” or of sacrifice in military service. American Atheists,
616 F.3d at 1162.17 It is thus unsurprising that, as the govern-
ment’s expert admits, “[o]ver the course of time, Mount Sole-
dad and its cross became a generic Christian site.” The Latin
cross can, as in Flanders fields, serve as a powerful symbol
17
We recognize that one of the government’s experts, Edward T. Linen-
thal, submitted a declaration opining that “[c]rosses at battle sites, or
memorials to veterans’ service are not sectarian religious symbols” but
instead “signify enduring national themes of” American civil religion,
such as “redemptive blood sacrifice and the virtue of selfless service.”
Linenthal’s declaration discusses American civil religion, its “[r]itual
expression[s],” and its symbols in some detail and specifically lists the
symbols used to celebrate Memorial Day, including “the American flag,
the meticulous decorating of graves . . . [and] parades of civic groups, high
school bands, and veterans of the American Legion and Veterans of For-
eign Wars.” But Linenthal attempts to incorporate crosses into American
civil religion only by stating that war memorials are part of the civil reli-
gion and then listing a few of the monuments discussed above. In light of
the uncontested history submitted by Jewish War Veterans, the few
memorials cited by Linenthal provide less than a scintilla of evidence to
support his conclusion that the Latin cross serves as a non-sectarian war
memorial. Linenthal’s conclusory declaration is insufficient to create an
issue of material fact on this issue. See, e.g., Nelson v. Pima Cmty. Coll.,
83 F.3d 1075, 1081 (9th Cir. 1996) (“The mere existence of a scintilla of
evidence is not enough to create a genuine issue of material fact in order
to preclude summary judgment.”) (internal quotation marks omitted).
208 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
of death and memorialization, but it remains a sectarian,
Christian symbol.18
18
In Buono, Justice Kennedy, writing for the plurality, suggested that a
Latin cross may be a generic symbol of memorialization, noting that “one
Latin cross in the desert evokes far more than religion. It evokes thousands
of small crosses in foreign fields marking the graves of Americans who
fell in battles, battles whose tragedies are compounded if the fallen are for-
gotten.” 130 S. Ct. at 1820.
We note that the Court in Buono was not addressing the merits of the
Establishment Clause challenge to the cross at issue in that case. Nonethe-
less, we have thoroughly considered Justice Kennedy’s opinion. As we
have discussed, the record before us does not establish that Latin crosses
have a well-established secular meaning as universal symbols of memori-
alization and remembrance. On the record in this appeal, the “thousands
of small crosses” in foreign battlefields serve as individual memorials to
the lives of the Christian soldiers whose graves they mark, not as generic
symbols of death and sacrifice. Even assuming that a Latin cross can con-
vey a more secular message, however, Justice Kennedy himself states that
the meaning of the cross cannot be “divorced from its background and
context.” Id. As we discuss below, the background and context of the
Mount Soledad Cross projects a strongly sectarian message that over-
whelms any undocumented association with foreign battlefields or other
secular meanings that the Cross might possess.
Further, we cannot overlook the fact that the Cross is forty-three feet
tall. It physically dominates the Memorial, towering over the secular sym-
bols placed beneath it, and is so large and placed in such a prominent loca-
tion that it can be seen from miles away. A forty-three foot cross that was
erected in part to celebrate Christianity, and that serves as the overwhelm-
ing centerpiece to a memorial is categorically different from the small
crosses used to mark the graves of individual Christian soldiers. The size
and prominence of the Cross evokes a message of aggrandizement and
universalization of religion, and not the message of individual memorial-
ization and remembrance that is presented by a field of gravestones. See
American Atheists, 616 F.3d at 1162 (“The massive size of the crosses dis-
played on Utah’s rights-of-way and public property unmistakably conveys
a message of endorsement, proselytization, and aggrandizement of religion
that is far different from the more humble spirit of small roadside cross-
es.”).
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 209
C. THE MOUNT SOLEDAD MEMORIAL
Our conclusion that the Latin cross is a Christian religious
symbol of remembrance or memorialization does not, of
course, end the matter. The cross on Mount Soledad does not
stand alone. Instead, it is the overwhelming centerpiece of a
memorial that now consists of approximately 2,100 plaques,
six concentric stone walls, twenty-three bollards, and an
American flag. These other elements are either uniquely secu-
lar or contain symbols of varying faiths. These changes are,
however, of recent vintage, and we must gauge the overall
impact of the Memorial in the context of its history and set-
ting.
1. The Importance of Setting and History
[12] Secular elements, coupled with the history and physi-
cal setting of a monument or display, can—but do not always
—transform sectarian symbols that otherwise would convey
a message of government endorsement of a particular reli-
gion. In County of Allegheny, for instance, the Supreme Court
upheld a holiday display—located outside a public building—
consisting of an eighteen foot menorah, a forty-five foot
Christmas tree that the Court deemed a typically secular
emblem of the holidays, and a sign saluting liberty. See 492
U.S. at 616-17. Although Justice O’Connor’s controlling
opinion considered the menorah to be an entirely sectarian
object, she determined that the display as a whole communi-
cated a secular message. In the same way that a museum
might convey the message of art appreciation without endors-
ing a religion even though individual paintings in the museum
have religious significance, the holiday display in Allegheny
conveyed a message of religious pluralism and freedom, even
though some elements of the display were sectarian. Id. at 635
(O’Connor, J., concurring in part and concurring in the judg-
ment).
By contrast, the Court in Allegheny held that a crèche dis-
played on the Grand Staircase of the county courthouse vio-
210 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
lated the Establishment Clause. The crèche is a Christian
display, and the crèche in Allegheny “st[ood] alone” on the
staircase in a “floral frame,” which, “like all good frames, ser-
ve[d] only to draw one’s attention to the message inside the
frame.” Id. at 598-99. The crèche therefore “convey[ed] a
message to nonadherents of Christianity that they are not full
members of the political community, and a corresponding
message to Christians that they are favored members of the
political community.” Id. at 626 (O’Connor, J., concurring in
part and concurring in the judgment).
But to complicate things, in the line of Establishment
Clause jurisprudence, the display of a crèche on public prop-
erty does not always convey such a message. The Christmas
display sponsored by the City of Pawtucket, Rhode Island, for
example, included both a crèche and secular decorations such
as “a Santa Claus house, reindeer pulling Santa’s sleigh,
candy-striped poles, a Christmas tree, carolers, [and] cutout
figures” of animals and a clown. Lynch, 465 U.S. at 671.
Given the presence of these secular elements, “[t]he evident
purpose of including the crèche in the larger display was not
promotion of the religious content of the crèche but celebra-
tion of the public holiday through its traditional symbols.” Id.
at 691 (O’Connor, J., concurring).
Like the crèche, the text of the Ten Commandments con-
veys an “undeniably . . . religious message.” Van Orden, 545
U.S. at 701 (Breyer, J., concurring in the judgment). When
placed in the midst of numerous other, non-religious monu-
ments, however, a display of the Commandments can also
impart a “secular moral message.” Id. As a result, such a dis-
play is, like the crèche among secular objects, permissible—
at least when the monument was privately donated and stood
without legal controversy for forty years. See id. at 701-03.
The question, then, is whether the entirety of the Mount
Soledad Memorial, when understood against the background
of its particular history and setting, projects a government
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 211
endorsement of Christianity. We conclude it does. In so hold-
ing, we do not discount the fact that the Cross was dedicated
as a war memorial, as well as a tribute to God’s promise of
“everlasting life,” when it was first erected, or that, in more
recent years, the Memorial has become a site for secular
events honoring veterans. We do not doubt that the present
Memorial is intended, at least in part, to honor the sacrifices
of our nation’s soldiers. This intent, however, is insufficient
to render the Memorial constitutional. Rather, we must
inquire into the overall effect of the Memorial, taking into
consideration its entire context, not simply those elements that
suggest a secular message. See American Atheists, 616 F.3d
at 1159 (“[A] secular purpose is merely one element of the
larger factual and historical context that we consider in order
to determine whether [the display] would have an impermissi-
ble effect on the reasonable observer.”). 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. 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 mes-
sage of religious endorsement, not simply secular memorial-
ization.
2. History of the Mount Soledad Memorial and La
Jolla
The Supreme Court has instructed that, when assessing the
effect of a religious display, we must consider history care-
fully: “reasonable observers have reasonable memories, and
[the Court’s] precedents sensibly forbid an observer to ‘turn
a blind eye to the context in which [the] policy arose.’ ”
McCreary, 545 U.S. at 866 (quoting Santa Fe Indep. Sch.
Dist., 530 U.S. at 308); accord Pinette, 515 U.S. at 780
(O’Connor, J., concurring in part and concurring in the judg-
ment) (“[T]he reasonable observer in the endorsement inquiry
must be deemed aware of the history and context of the com-
212 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
munity and forum in which the religious display appears.”);
Buono, 371 F.3d at 550. The Memorial’s history stretches
back more than five decades, and we must consider how the
Memorial was used and the message it conveyed throughout
this entire period, and not just in the short time that it has
stood on federal land. Congress’ acquisition of the Cross in
2006 did not erase the first fifty-two years of its life, or even
its history dating back to the beginning of the twentieth cen-
tury. As the district court noted, when Congress acquired the
Memorial, it was obligated to “tak[e] history as it [found] it.”
[13] History would lead the reasonable observer to per-
ceive a religious message in the Memorial. For most of its
life, the Memorial has consisted of the Cross alone. The Cross
is the third in a line of Latin crosses that has stood on Mount
Soledad since 1913. Mount Soledad was chosen as the site for
the first cross because it was considered “a fitting place on
which to erect an emblem of faith.” The earlier crosses were
not dedicated as war memorials, but served as the site of inter-
mittent Easter sunrise services. When the Cross was erected
in 1954, it was dedicated “as a lasting memorial to the dead
of the first and second World Wars and the Korean conflict.”
There was no physical indication that the Cross was intended
as a war memorial, however, until a plaque was added to the
site in 1989, after litigation over the Cross had begun.
At the same time, the Cross’s religious nature has been
widely recognized and promoted since it was first erected.
When seeking permission from the La Jolla Town Council to
erect the Cross, the Association explained that its objective
was to “create a park . . . worthy to be a setting for [this] sym-
bol of Christianity.” The Association sent out fundraising let-
ters that called on potential donors to support “this
manifestation, this symbol, of our faith.” The Association also
raised funds for the Cross at Easter services and through the
performance of a Christian play, “Paul of Corinth,” at a local
church.
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 213
[14] The Cross was dedicated on Easter Sunday in a cere-
mony that included a Christian religious service. The Cross
was dedicated not only to fallen soldiers, but also to Jesus
Christ with the hope that it would be “a symbol in this pleas-
ant land of Thy great love and sacrifice for all mankind.” The
program for the ceremony referred to the Cross as “a gleam-
ing white symbol of Christianity.”
After the Cross’s dedication in 1954, the Association held
Easter services at the Memorial annually until at least 2000,
and other religious ceremonies have been held there since.
The annual Easter services included readings from the Bible,
a Christian prayer and benediction, and songs such as “Jesus
Christ is Risen Today” and “All Hail the Power of Jesus’
Name.” Until the early 1990s, the program for the annual Eas-
ter service recounted the Cross’s history and described it as “a
gleaming white Cross” that serves as a “reminder of God’s
Promise to man of redemption and everlasting life.” During
this same time period, the Cross was referred to as the “Easter
Cross” on local maps.
[15] In contrast to this ample evidence of religious usage,
the record of secular events at the Memorial is thin. The Asso-
ciation represented in its 1998 bid for the land sale that it had
conducted annual memorial services at the site for forty-six
years, but the government’s expert historian could point to
evidence of only two Veterans day ceremonies—one in 1971
and one in 1973—that occurred prior to 1989. The govern-
ment provides record evidence of secular events at the Memo-
rial only from 1996 onward—after the litigation began and
after the government started attempting to transform the site.
The Cross’s importance as a religious symbol has been a
rallying cry for many involved in the litigation surrounding
the Memorial.19 LiMandri and the Thomas More Law Center
19
The district court largely discounted this fact, holding that it was “nei-
ther logical nor proper” to impute the motivations of the Association and
214 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
were integral in devising the plan to designate the land as a
national veterans’ memorial. They publicly characterized the
campaign to save the Cross in religious terms—for example,
as a “spiritual battle.” LiMandri declared that “Christ won the
war on Calvary. These are just kind of mop-up battles . . . .”
LiMandri also participated in a fifty-four day prayer move-
ment in front of the Cross that opened with the singing of
“Immaculate Mary,” and the prayer of twenty mysteries of the
rosary.
Other Christian advocacy groups like the American Family
Association, the American Center for Law & Justice, and
Fidelis launched national petition campaigns for the Cross; an
intercessory prayer movement was held by the Christian
Defense Counsel outside the White House. Representatives
from many of these groups participated in a meeting of the
San Diego City Council to consider whether to accept the fed-
eral transfer. At the meeting, participants advocated for the
transfer by invoking the Cross’s importance as a Christian
symbol, and denouncing their opponents as “Satanists” or
“hate[rs] of Christianity.” When the Act passed, the Christian
Coalition “commend[ed] the great efforts . . . in saving this
historic symbol of Christianity in America.” The starkly reli-
gious message of the Cross’s supporters would not escape the
notice of the reasonable observer. See Van Orden, 545 U.S.
City to the federal government. This reasoning is correct on its own terms,
see Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1136 (2009) (distin-
guishing the intent of private donors and the government’s objectives in
accepting a monument) and Card, 520 F.3d at 1019-20 (same), but some-
thing of a red herring. Regardless of the issue of imputed intent, the his-
tory of the Memorial is relevant to determining its effect on the reasonable
viewer. Thus, while this evidence may not be relevant to congressional
purpose, it cannot be ignored in assessing the history and context of the
Cross, which remains on public land. Again, simply because the Cross was
transferred from the local government to the federal government does not
wipe out the history of the site. The transfer did not divest the Cross of
its Christian symbolism or of the long history and association of the site
as one of religious significance.
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 215
at 703 (Breyer, J., concurring in the judgment) (“[T]he short
(and stormy) history of the courthouse Commandments’ dis-
plays [at issue in McCreary] demonstrates the substantially
religious objectives of those who mounted them, and the
effect of this readily apparent objective upon those who view
them.”).
The wide recognition of the Cross as a religious symbol
and its long “and stormy” history of religious usage distin-
guishes the Memorial from the displays in Van Orden and
Card. The Ten Commandments monuments at issue in those
cases passed muster in part because they were not used as
religious objects—they simply adorned the grounds of their
respective government buildings in the company of other
monuments. See Van Orden, 545 U.S. at 701 (Breyer, J., con-
curring in the judgment) (“[T]o determine the message that
the text [of the Ten Commandments monument] here con-
veys, we must examine how the text is used.”) (emphasis in
original). In Van Orden, Justice Breyer emphasized that the
organization that erected the Ten Commandments monument
“sought to highlight the Commandments’ role in shaping civic
morality as part of that organization’s efforts to combat juve-
nile delinquency.” Id. at 701. Given the Monument’s history
and use in those cases, a reasonable viewer would not have
inferred from the use of the monuments that their function
was religious in nature. By contrast, a reasonable observer of
the Memorial would be aware of the long history of the Cross,
and would know that it functioned as a holy object, a symbol
of Christianity, and a place of religious observance. The
Cross’s religious history heightens, rather than neutralizes, its
“undeniably . . . religious message.” See id. (finding that
although the text of the Ten Commandments “undeniably has
a religious message,” that message did not predominate in the
display because the text was not used in a sectarian manner);
see also Eckels, 589 F. Supp. at 235 (“[T]hat the effect of the
symbols’ presence is religious is evidenced by what the site
has been used for since the [cross was] constructed [including
216 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
Easter sunrise services]. There is nothing remotely secular
about church worship.”).
[16] The fact that the Memorial also commemorates the
war dead and serves as a site for secular ceremonies honoring
veterans cannot overcome the effect of its decades-long reli-
gious history. See Jewish War Veterans, 695 F. Supp. at 5, 13-
14 (holding that religious symbolism of a Latin cross and use
of cross in religious ceremonies rendered it unconstitutional
even though it had been dedicated as a war memorial).
Although the Memorial was labeled a war memorial in 1954,
for almost three decades—during which it served primarily as
a site of religious observance—the Memorial consisted of
only the Cross, with no physical indication of any secular pur-
pose. Further, recognition of the Memorial as a tribute to vet-
erans has usually been coupled with Christian ceremonies and
statements about the Cross’s religious significance. The
simultaneous invocation of the Cross as a tribute to veterans
and a “gleaming white symbol of Christianity” lends a dis-
tinctly sectarian tone to the Memorial’s secular message of
commemoration. See Carpenter, 93 F.3d at 631 (holding
cross was not constitutional in part because its secular history
was “intertwined with its religious symbolism”). The Memo-
rial’s relatively short history of secular usage does not pre-
dominate over its religious functions so as to eliminate the
message of endorsement that the Cross conveys. See Van
Orden, 545 U.S. at 701-03.
[17] La Jolla—where the Memorial is located and serves
as a prominent landmark—has a history of anti-Semitism that
reinforces the Memorial’s sectarian effect. The record con-
tains various documents reporting “long-standing, culturally
entrenched anti-Semitism” in La Jolla from the 1920s through
about 1970. The details of this history are well documented
in a study that is part of the district court record.20 See Mary
20
The district court stated that there “is no history of religious discrimi-
nation” surrounding the Memorial. Presumably the district court was refer-
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 217
Ellen Stratthaus, Flaw in the Jewel: Housing Discrimination
Against Jews in La Jolla, California, 84 AM. JEWISH HISTORY
3, 189-219 (1996). The anti-Semitism manifested itself in var-
ious forms but “most prominently in the housing market.”
Until the late 1950s, Jews were effectively barred from living
in La Jolla by a combination of formal and informal housing
restrictions. La Jolla was forced to abandon these restrictions
in 1959, in order to persuade the University of California to
open a new campus—the University of California San Diego.
The aura of anti-Semitism, however, continued at least
through the 1960s. An informed observer is far more likely to
see the Memorial as sending a message of exclusion against
this backdrop than if it had been erected in a city without this
pointed history.
[18] La Jolla’s anti-Semitic history also informs our con-
clusion that the historical lack of complaint about the Memo-
rial is not a determinative factor in this case. See Van Orden,
545 U.S. at 702-03 (Breyer, J., concurring in the judgment).
In Van Orden, there was little to explain why there had been
no complaints about the Ten Commandments monument
other than the hypothesis that people had not been especially
bothered by it. Here, the Memorial stood in the heart of a
largely homogenous and exclusionary community. Even the
government’s expert noted that, for residents of La Jolla,
being religious meant “by definition, without really thinking
about it as inclusive or exclusive today, [ ] being Christian.”
ring to the fact that there is no evidence of non-Christian groups
requesting to use the Memorial and being denied access on the basis of
their faith. We agree with the district court that there is no evidence of this
type of religious discrimination, although we also note that there is hardly
an extensive record of non-Christian religious events taking place at the
site. More importantly, there is extensive evidence of religious discrimina-
tion in La Jolla, unrefuted by the government. Given that the Cross was
constructed in La Jolla with a distinctly religious purpose, by La Jolla resi-
dents, during the height of this discriminatory period, we cannot ignore
that such discrimination is part of the Memorial’s history and context and
informs the reasonable observer’s views.
218 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
The Association’s President noted that residents thought the
site was primarily religious, although, in his view, it was pri-
marily a veterans memorial. Under these circumstances, a
lack of complaints from the minority population is hardly
reflective of the lack of controversy.
As it turns out, the record indicates that the first questions
about the constitutionality of the Memorial arose in 1969 or
1970, less than a decade after La Jolla real estate was opened
up to Jews (and other minorities). This sequence of events
lends support to the argument that the discriminatory housing
policies of La Jolla may have stifled complaints about the
Memorial early in its lifetime.21 In any case, the Memorial has
been the subject of continuous and heated litigation and politi-
cal controversy for the last twenty years. However one
assesses the early years, the Cross has long since become a
flashpoint of secular and religious divisiveness.
Moreover, the suggestion that the longevity and perma-
nence of the Cross diminishes its effect has no traction. As the
Seventh Circuit explained in Gonzales,
We believe this argument is much like [saying] the
longer the violation, the less violative it becomes.
The longer the cross is displayed in the Park, the
21
The district court discounted an article reporting the story of early
questions about the Memorial’s constitutionality. Again, the court
appeared to be weighing evidence rather than crediting it to the non-
moving party. In any event, the article documents that “[a]round 1969 or
1970, the church-state question arose,” and a member of the San Diego
City Council “took up the cause and researched the legal status of the
cross,” ultimately determining that it did not violate the Establishment
Clause. The article goes on to describe certain steps taken to “blunt any
possible legal challenges” and quotes a La Jolla municipal employee as
saying “the church-state question has come up.” None of this suggests that
a debate was raging over the Memorial in the 1960s and ‘70s, but it cer-
tainly shows that the constitutionality of the Memorial was questioned
during that period, seriously enough that the Association took action to
ward off litigation.
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 219
more the effect is to memorialize rather than sermon-
ize. We do not accept this sort of bootstrapping argu-
ment as a defense to an Establishment Clause
violation, nor have we found any other case that
adopted this reasoning.
4 F.3d at 1422.
[19] Overall, a reasonable observer viewing the Memorial
would be confronted with an initial dedication for religious
purposes, its long history of religious use, widespread public
recognition of the Cross as a Christian symbol, and the history
of religious discrimination in La Jolla. These factors cast a
long shadow of sectarianism over the Memorial that has not
been overcome by the fact that it is also dedicated to fallen
soldiers, or by its comparatively short history of secular
events.
3. The Memorial’s Physical Setting
[20] The Memorial’s physical setting amplifies the mes-
sage of endorsement and exclusion projected by its history
and usage. Despite the recent addition of secular elements, the
Cross remains the Memorial’s central feature. The Cross
physically dominates the site. It weighs twenty-four tons,
stands forty-three feet tall on its base, and is visible from
many more locations and perspectives than the Memorial’s
secular elements. The Cross is placed in a separate, fenced off
box, which highlights it, rather than incorporates it as a natu-
ral part of the Memorial.
[21] The engraved plaques and paving stones ring the hill
on which the Cross sits, placed literally in the Cross’s shadow.22
22
In holding that the Memorial’s secular elements predominated, the
district court emphasized that there were far more secular objects in the
Memorial than religious ones. Our evaluation of the Memorial’s setting,
however, cannot rest on the total number of secular versus religious ele-
220 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
The relationship of the Cross to the Memorial’s secular fea-
tures inverts the relationship between religious and secular
that was presented in County of Allegheny. There, the forty-
five foot tall secular Christmas tree was “clearly the predomi-
nant element of the city’s display,” occupying the central
position in the display and towering over the eighteen foot
menorah placed to one side. County of Allegheny, 492 U.S. at
617 (opinion of Blackmun, J.). The Supreme Court found that
the display did not convey a religious message. Id. at 635
(O’Connor, J., concurring in part and in the judgment). Here,
just the opposite is true: The way in which the Cross over-
shadows the Memorial’s secular aspects presents a strongly
sectarian picture. See id. at 617 (opinion of Blackmun, J.)
(explaining that because the Christmas tree overshadowed the
menorah, it was “sensible to interpret the meaning of the
menorah in light of the tree, rather than vice versa”); id. at
598-99 (finding that crèche conveyed religious message
because “nothing in the context of the display,” including the
secular flower wreath, “detracts from the crèche’s religious
message”); see also City of St. Charles, 794 F.2d at 267 (hold-
ing cross in a multi-faceted Christmas display unconstitu-
tional and noting that the cross was “an overpowering feature
of the . . . decorations . . . and . . . there [was] no taller object
in the city’s Christmas display”). A reasonable observer
would view the Cross as the primary feature of the Memorial,
with the secular elements subordinated to it. It is the cross that
catches the eye at almost any angle, not the memorial plaques.
From the perspective of drivers on Interstate 5, almost
directly below, the Cross is the only visible aspect of the
Memorial, and the secular elements cannot neutralize the
ments. Our analysis is not a numbers game. Rather, we must examine the
primary effect of the Memorial’s various elements, to determine whether
they convey a secular or religious message. Here, the Memorial’s religious
element—the Cross—is by far its most prominent and dominant feature,
completely eclipsing the more numerous plaques and bollards sitting
beneath it.
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 221
appearance of sectarianism. For these drivers, the Cross does
not so much present itself as a war memorial, but rather as a
solitary symbol atop a hill. In fact, the Cross is the only ele-
ment of the Memorial that can be seen from anywhere except
the site of the Memorial itself—including from Interstate 15,
which is much farther from Mount Soledad than Interstate 5.
As we explained in Ellis, the fact that the “Cross stands as
the focal point of the park, visible to those looking at the hill
from a substantial distance” contributes to its sectarian effect.
990 F.2d at 1527; see also Buono, 371 F.3d at 549 (highlight-
ing the fact that cross is visible to vehicles on adjacent road
from 100 yards away); American Atheists, 616 F.3d at 1160
(finding that secular elements of the highway crosses did not
diminish the message of endorsement in part because “a
motorist driving by one of the memorial crosses . . . may not
notice . . . the biographical information . . . [but] is bound to
notice the preeminent symbol of Christianity”); Gonzales, 4
F.3d at 1414 (finding cross unconstitutional and noting that it
“is located in an area . . . which borders a busy intersection
. . . [and] is visible to virtually anyone who passes through”);
Raburn County Chamber of Commerce, Inc., 698 F.2d at
1101, 1111 (holding illuminated cross erected at the top of a
mountain in a local state park unconstitutional and noting that
it “[shines] over the North Georgia mountains” and “is visible
for several miles from the major highways”). Although the
Cross is located miles from downtown, it is located at the
highest point in La Jolla—a place of particular prominence in
San Diego.23 See Ellis, 990 F.2d at 1527.
23
The district court held that the distance between the Memorial and
government buildings weighed against a finding of endorsement, noting
that the Memorial was “an unlikely place for government indoctrination.”
The proximity of a religious display to government buildings is not dispo-
sitive as to constitutionality. We impute to the reasonable observer the
awareness that the Memorial sits on public land. Whether identified by the
public as city or federal land, it is well known that the site is a public park.
222 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
The centrality and prominence of the Cross in the Memo-
rial distinguishes the Memorial from other war memorials
containing crosses. For example, the Argonne Cross and the
Canadian Cross of Sacrifice at Arlington National Cemetery
and the Irish Brigade Monument at Gettysburg are located
among the many secular monuments in those memorials. The
crosses are on equal footing with these other monuments and
do not dominate the landscape. The constitutionality of these
crosses is not before us and we do not question their legiti-
macy. Their setting, however, is reflective of how crosses are
incorporated within a larger memorial setting. That a cross
may be permissible when it is merely one facet of a large, sec-
ular memorial in which it does not hold a place of prominence
does not speak to the constitutionality of a cross that is the
centerpiece of and dominates a memorial, the secular ele-
ments of which are subordinated to the cross. Faced with such
a cross, a reasonable observer would perceive a sectarian mes-
sage of endorsement.
In addition to overshadowing the Memorial’s secular ele-
ments, the Cross’s central position within the Memorial gives
it a symbolic value that intensifies the Memorial’s sectarian
message. The Memorial’s secular elements—the plaques,
paving stones and bollards—represent specific individuals or
groups of veterans, but the Cross, at the center of the Memo-
rial, is meant to represent all veterans, regardless of their
faith. The Cross, however, is the “preeminent symbol”—a
“gleaming white symbol”—of one faith, of Christianity. The
particular history of this Cross only deepens its religious
meaning. The Cross is not only a preeminent symbol of Chris-
tianity, it has been consistently used in a sectarian manner. As
even the government’s expert noted, “over time . . . Mount
Soledad and its cross became a . . . Christian site.” The
Cross’s history casts serious doubt on any argument that it
was intended as a generic symbol, and not a sectarian one. See
Raburn County Chamber of Commerce, Inc., 698 F.2d at
1110-11 (finding that dedication of cross at Easter service and
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 223
Easter services occurring at the cross were evidence that cross
was erected for a religious purpose).
[22] The use of such a distinctively Christian symbol to
honor all veterans sends a strong message of endorsement and
exclusion. 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. As one World War II vet-
eran who fought in both D-Day and the Battle of the Bulge
put it:
I don’t know if it is a Christian monument, but it
does not speak for me. I was under Hitler and in a
concentration camp and a cross does not represent
me. The Cross does not represent all veterans and I
do not know how they can say it represents all veter-
ans. I do not think a cross can represent Jewish vet-
erans.
One of the plaintiffs, Steve Trunk, explained that he was “a
veteran who served his country during the Vietnam conflict
[but] I am not a Christian and the memorial sends a very clear
message to me that the government is honoring Christian war
veterans and not non Christians.”24 See also City of St.
Charles, 794 F.2d at 273 (“[T]he story of the death and resur-
rection of Christ, the story that the cross calls to mind, moves
only Christians deeply.”).
By claiming to honor all service members with a symbol
that is intrinsically connected to a particular religion, the gov-
ernment sends an implicit message “to nonadherents that they
are outsiders, not full members of the political community,
and an accompanying message to adherents that they are
insiders, favored members of the political community.” See
24
We note that not all veterans agree, and that a local Jewish veterans
group opposes the effort of the national group to challenge the Cross.
224 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
Lynch, 465 U.S. at 688 (O’Connor, J., concurring); see also
American Atheists, 616 F.3d at 1160-61 (“[T]he fact that all
of the fallen . . . troopers are memorialized with a Christian
symbol conveys a message that there is some connection
between [the state] and Christianity. . . . [T]he significant size
of the cross would only heighten this concern.”); Eckels, 589
F. Supp. at 235 (the primary effect of crosses and Stars of
David used as war memorials “is to give the impression that
only Christians and Jews are being honored by the country”).
This message violates the Establishment Clause.25
[23] Accordingly, after examining the entirety of the
Mount Soledad Memorial in context—having considered its
history, its religious and non-religious uses, its sectarian and
secular features, the history of war memorials and the domi-
nance of the Cross—we conclude that the Memorial, pres-
ently configured and as a whole, primarily conveys a message
of government endorsement of religion that violates the
Establishment Clause. 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.
We reverse the grant of summary judgment to the govern-
ment and remand for entry of summary judgment in favor of
the Jewish War Veterans and for further proceedings consis-
tent with this opinion.
REVERSED AND REMANDED.
25
The fact that individual veterans can purchase plaques representing
their own beliefs does not cure the constitutional problem with the Memo-
rial. The Memorial appears to represent Christian veterans generally, even
if non-Christian veterans can take steps to be honored specifically. Simply
purchasing a single small plaque with a Star of David would do little to
mute the overall effect of the Cross.
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 225
APPENDIX A
226 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
JEWISH WAR VETERANS v. CITY OF SAN DIEGO 227