Trunk v. City of San Diego

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEVE TRUNK, 
Plaintiff,
and No. 08-56415
JEWISH WAR VETERANS OF THE D.C. Nos.
UNITED STATES OF AMERICA, INC.; 3:06-cv-01597-
RICHARD A. SMITH; MINA SAGHEB; LAB-WMC
JUDITH M. COPELAND,  3:06-cv-01728-
Plaintiffs-Appellants, LAB-WMC
v. Southern District of
California,
CITY OF SAN DIEGO; UNITED STATES San Diego
OF AMERICA; ROBERT M. GATES,
Secretary of Defense,
Defendants-Appellees.


18969
18970 JEWISH WAR VETERANS v. CITY OF SAN DIEGO

STEVE TRUNK, PHILIP K. PAULSON, 
Plaintiffs-Appellants,
and
RICHARD A. SMITH; MINA SAGHEB; No. 08-56436
JUDITH M. COPELAND; JEWISH WAR D.C. Nos.
VETERANS OF THE UNITED STATES OF 3:06-cv-01597-
AMERICA, INC., LAB-WMC
Plaintiffs,
 3:06-cv-01728-
LAB-WMC
v.
Southern District of
CITY OF SAN DIEGO; UNITED STATES California,
OF AMERICA; MOUNT SOLEDAD San Diego
MEMORIAL ASSOCIATION, Real
parties in interest; ROBERT M. ORDER
GATES, Secretary of Defense, in
his official capacity,
Defendants-Appellees,

Filed October 14, 2011

Before: Harry Pregerson, M. Margaret McKeown, and
Richard A. Paez, Circuit Judges.

Order;
Dissent by Judge Bea

ORDER

A majority of the panel has voted to deny the petitions for
rehearing. A judge of the court called for a vote on the peti-
tions for rehearing en banc. A vote was taken, and a majority
of the active judges of the court failed to vote for en banc
rehearing. Fed. R. App. P. 35(f). The petitions for rehearing
and for rehearing en banc are DENIED.
 JEWISH WAR VETERANS v. CITY OF SAN DIEGO 18971
BEA, Circuit Judge, dissenting from the denial of rehearing
en banc, joined by O’SCANNLAIN, TALLMAN,
CALLAHAN, and IKUTA, Circuit Judges:

“A rose is a rose is a rose.”

— Gertrude Stein, Sacred Emily, 1913.

Stein wrote this sentiment to express the flower’s indescrib-
able, unchangeable essence. The panel appears to have trans-
mogrified Stein’s ode to a rose into a new rule of law—“a
cross is a cross is a cross.” Alas, that is neither good poetry
nor valid law. Unlike roses, religious symbols can have multi-
ple meanings, just as the Ten Commandments monument did
in Van Orden:

Of course, the Ten Commandments are religious—
they were so viewed at their inception and so remain.
The monument, therefore, has religious significance.
According to Judeo-Christian belief, the Ten Com-
mandments were given to Moses by God on Mt.
Sinai. But Moses was a lawgiver as well as a reli-
gious leader. And the Ten Commandments have an
undeniable historical meaning, as the foregoing
examples demonstrate. Simply having a religious
content or promoting a message consistent with a
religious doctrine does not run afoul of the Establish-
ment Clause.

Van Orden v. Perry, 545 U.S. 677, 690 (2005); see also
McCreary County v. ACLU, 545 U.S. 844, 867-68 (2005).

Van Orden tells us that the proper test to determine whether
the government has violated the Establishment Clause by
erecting or maintaining a religious symbol on public grounds
depends on: (1) the government’s use of the religious symbol;
(2) the context in which that symbol appears; and (3) the his-
tory of the symbol while under government control, including
18972 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
how long it has stood unchallenged.1 See McCreary County,
545 U.S. at 867-68 (2005); Van Orden, 545 U.S. at 681.

As to use, it is undisputed here that from the moment the
federal government took title to the Mt. Soledad Memorial
site in 2006, it has neither held nor permitted to be held any
sort of a religious exercise there. The site has been used solely
for the purpose of memorializing fallen soldiers, consistent
with the Cross’s “undeniable historical meaning,” Van Orden
at 690, evoking the memory of fallen soldiers.

As to context, the record evidence is also undisputed that
at the time the federal government bought the Mt. Soledad
Memorial site, the Cross was surrounded with over 2,100
plaques commemorating veterans of various faiths or of no
faith, and 23 bollards2 commemorating some particularly val-
1
Additionally, just what is the new test the panel invented: the test for
“borderline” cases? See Jewish War Veterans v. City of San Diego, 629
F.3d 1099, 1108 (9th Cir. 2011). The panel opinion concludes that
whether we use Lemon or Van Orden depends on whether a case is “bor-
derline.” First, the panel fails to tell us how to determine whether a case
is borderline. Is a case borderline when judges can disagree? When it
comes to Establishment Clause cases involving religious symbols, I have
yet to see one on which all judges agree. This cannot be the desiderata in
these cases. Rather, which test we apply must be determined by which test
logically fits the type of case, whether it be a publicly-displayed symbol
like the Ten Commandments in Van Orden, or a governmental practice,
such as opening Congressional sessions with a prayer. See Marsh v.
Chambers, 463 U.S. 783 (1983). To allow judges to pick which of the
Establishment Clause tests they apply according to whether they think it
is a “borderline” case or not—without defining what is “borderline”—is
a recipe for uncertainty in our law.
2
A bollard is a symbolic representation of a nautical feature commonly
described as a post fixed to a quay or a vessel for securing mooring ropes.
The bollards have been dedicated to, for example, the American Legion
and the VFW Post Mission Bay. Some of the group plaques have been
dedicated to military ships, including the USS Hanson, used in World War
II, Korea and Vietnam, and brigades and platoons, including “Echo Com-
pany,” which proudly calls itself “The Magnificent Bastards.” For further
information and examples, see http://www.soledadmemorial.com/web/
pages/view_example_plaques/group_war_plaques.htm.
 JEWISH WAR VETERANS v. CITY OF SAN DIEGO 18973
iant units who had taken casualties and various secular com-
munity groups.

As to history, it is again undisputed that the history of the
Mt. Soledad Cross has changed as its use has changed.

For the same reason that the Ten Commandments stand
today in that park in Austin, Texas, the Cross should continue
to stand on Mt. Soledad: a religious symbol is not always used
to promote religion. Whether it promotes religion depends on
the context in which the symbol is displayed, how it is used,
and its history. Here, that display, use, and history are secular
and require affirmance of summary judgment for the federal
government.

Second, were the panel to eschew the Van Orden rule, for
a test as to whether a reasonable observer, aware of all rele-
vant circumstances, would believe the Cross constituted a
government endorsement of religion, it erred by failing to rec-
ognize a triable issue of material fact: that there was conflict-
ing evidence in the record as to whether that reasonable
observer would necessarily conclude the federal government
was trying to endorse religion by maintaining the Mt. Soledad
Memorial Park, including the Cross at its entrance.

I. The panel applied the wrong test.

Establishment Clause jurisprudence does not have a nice,
neat, one-test-fits-all pattern. Which test the Supreme Court
applies varies depending on what fact pattern is involved.
When it comes to religious symbols in the public square, the
Court questions the applicability of the Lemon test:3
3
Under the Lemon test, to be constitutional (1) the challenged govern-
mental action must have a secular purpose; (2) “its principal or primary
effect must be one that neither advances nor inhibits religion”; and (3) it
“must not foster an excessive government entanglement with religion.”
Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
18974 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
Whatever may be the fate of the Lemon test in the
larger scheme of Establishment Clause jurispru-
dence, we think it not useful in dealing with the sort
of passive monument that Texas has erected on its
Capitol grounds. Instead, our analysis is driven both
by the nature of the monument and by our Nation’s
history.

Van Orden, 545 U.S. at 686 (plurality op.). Notice too that the
Court in Van Orden also did not choose to use the Endorse-
ment Test from County of Allegheny v. ACLU, 492 U.S. 573,
578-79 (1989), to test the Ten Commandments monuments.

It is precisely because the federal government has elimi-
nated any religious exercises at the Mt. Soledad memorial site
that Van Orden applies. Although the Supreme Court did not
state the factors to consider when evaluating a religious sym-
bol on government land in one concise sentence,4 reading the
entire Van Orden opinion it is clear the Court looked at three
elements to determine whether the government has violated
the Establishment Clause by erecting or maintaining a monu-
ment that has religious significance.

First, the Court looked at the government’s use of the reli-
gious symbol:

On the one hand, the Commandments’ text unques-
tionably has a religious message, invoking, indeed
emphasizing, the Deity. On the other hand, focusing
on the text of the Commandments alone cannot con-
clusively resolve this case. Rather, to determine the
message that the text here conveys, we must exam-
ine how the text is used. And that inquiry requires us
to consider the context of the display.
4
Indeed, the Court specified that “[n]o exact formula can dictate a reso-
lution to fact-intensive cases such as this.” Van Orden, 545 U.S. at 690.
This is true, but I see no reason why the test applied in McCreary County
and Van Orden would not also be the applicable test here.
 JEWISH WAR VETERANS v. CITY OF SAN DIEGO 18975
Van Orden, 545 U.S. at 700-01 (Breyer, J., concurring)
(emphasis in original). On this factor, it is undisputed that the
use of the Mt. Soledad Cross by the federal government
sought to be enjoined has been exclusively secular.

Second, the Court looked at the context in which the sym-
bol appears:

Despite the Commandments’ religious message, an
inquiry into the context in which the text of the
Commandments is used demonstrates that the Com-
mandments also convey a secular moral message
about proper standards of social conduct and a mes-
sage about the historic relation between those stan-
dards and the law. The circumstances surrounding
the monument’s placement on the capitol grounds
and its physical setting provide a strong, but not con-
clusive, indication that the Commandments’ text as
used on this monument conveys a predominantly
secular message.

Van Orden, 545 U.S. at 691. On this factor, only plaques
commemorating veterans and bollards commemorating secu-
lar groups have been placed around the Cross at Mt. Soledad.
The Cross stands at the entrance to the memorial, next to a
giant American flag, making it clear the site marks the
entrance to a veterans’ memorial.

None of the groups listed on either the bollards or group
plaques are religious groups.

Third, the Court examined the history of the symbol while
under government control, including how long it has stood
unchallenged. Van Orden, 545 U.S. at 686-91 and passim. See
also McCreary County, 545 U.S. at 867-68. There had been
no court challenge to the Cross from 1913 until 1989, roughly
76 years.
18976 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
II. The Government’s use of the Mt. Soledad Memorial
and the context in which the Cross appears are both
secular.

Both McCreary County and Van Orden involved a monu-
ment with unquestionably Judeo-Christian religious text—the
Ten Commandments. But the Court’s analysis did not stop
there. “[T]he question is what viewers may fairly understand
to be the purpose of the display. That inquiry, of necessity,
turns upon the context in which the contested object appears.”
McCreary County, 545 U.S. at 867-68 (citation omitted). In
McCreary County, the Ten Commandments were displayed
alone in the entrance to the Kentucky courthouse; they were
being used as a symbol of God’s teaching and a set of rules
that all should live by. Thus, the setting in Kentucky con-
veyed a message along the lines of, “Thou shalt follow these
Judeo-Christian laws or be in violation of the laws that are
enforced in this courthouse.” By contrast, in Texas, that same
text was displayed on one of many monuments, all of which
had some historical significance. Thus, the message in Texas
was more along the lines of, “Here is a text that has helped
to shape our state’s history and laws.” The text in both cases
was the same, but the setting made all the difference.

Here, we have a Cross, an unquestionably Christian sym-
bol. In a previous case, this court held that due to its strong
religious connotations, a Cross standing alone on federal land
in the Mojave National Preserve—even a Cross erected as a
memorial to fallen soldiers—violated the Establishment
Clause. Buono v. Norton, 371 F.3d 543 (9th Cir. 2004).

But Buono v. Norton does not determine this case, for two
reasons. First, it was handed down a year before the Ten
Commandment cases, and understandably did not discuss
either.

Second, in its next iteration, Salazar v. Buono, ___ U.S.
___, 130 S. Ct. 1803 (2010), the Court did not hold the lone
 JEWISH WAR VETERANS v. CITY OF SAN DIEGO 18977
Cross to be such an inherently religious symbol that it vio-
lated the Establishment Clause. If the Cross were ineluctably
only a religious symbol, there would have been no need for
the Court’s remand in Buono to the district court for it to con-
sider whether the transfer of the land on which the Cross sat
to a private party from the federal government was significant
for the purposes of determining whether an Establishment
Clause violation had occurred.

Writing for himself, Chief Justice Roberts and Justice
Alito, Justice Kennedy5 recognized the unique history of the
Cross as a symbol of respect for fallen soldiers (of all faiths
or no faith) and criticized the district court for conducting the
very same analysis the panel employs in this case:

[T]he District Court concentrated solely on the reli-
gious aspects of the cross, divorced from its back-
ground and context. But a Latin cross is not merely
a reaffirmation of Christian beliefs. It is a symbol
often used to honor and respect those whose heroic
acts, noble contributions, and patient striving help
secure an honored place in history for this Nation
and its people. Here, 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 trage-
dies are compounded if the fallen are forgotten.

Buono, 130 S. Ct. at 1820. In his concurrence, Justice Alito
also recognized that crosses have a secular significance, par-
ticularly in the military realm, and thus they do not need to
be removed from the public domain simply because they are
also the symbol of Christianity:
5
Justices Scalia and Thomas wrote a separate concurrence in Salazar v.
Buono that in their opinion the plaintiff did not have standing to bring this
challenge. See 130 S. Ct. at 1824. They did, however, join in the judgment
in Van Orden. See 545 U.S. 647.
18978 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
[T]he original reason for the placement of the cross
was to commemorate American war dead and, par-
ticularly for those with searing memories of The
Great War, the symbol that was selected, a plain
unadorned white cross, no doubt evoked the unfor-
gettable image of the white crosses, row on row, that
marked the final resting places of so many American
soldiers who fell in that conflict. . . . The demolition
of this venerable if unsophisticated, monument
would also have been interpreted by some as an
arresting symbol of a Government that is not neutral
but hostile on matters of religion and is bent on elim-
inating from all public places and symbols any trace
of our country’s religious heritage.

Id. at 1823 (Alito, J., concurring).

If the Mojave Desert cross standing by itself, with only a
single plaque, can be understood as a memorial to fallen sol-
diers, then surely the Mt. Soledad Cross, surrounded by more
than 2100 memorial plaques, bollards commemorating groups
of veterans, and a gigantic American flag, can be viewed as
a memorial as well.

III. History can change the use of a symbol and its
meaning.

History is important, in part because things change over
time. The Spanish government of the day endorsed the Inqui-
sition until the early years of the 19th Century. Would a rea-
sonable observer therefore consider the edicts of King
Ferdinand VII in determining whether today’s Socialist gov-
ernment endorses the Inquisition? Of course not.

The panel concentrated its analysis on the history of the
Cross as a religious symbol. Not on how this Cross at Mt.
Soledad has been used by this government, but on the cross
in general. Were the panel’s analysis the correct one to deter-
 JEWISH WAR VETERANS v. CITY OF SAN DIEGO 18979
mine whether the challenged symbol is religious in nature,
then many a Supreme Court case would have come out differ-
ently. Simply having religious content or promoting a mes-
sage consistent with a religious doctrine does not run afoul of
the Establishment Clause. See, e.g., Lynch v. Donnelly, 465
U.S. 668, 687 (1984). In Lynch, the Court upheld a Christmas
display that included a Nativity crèche, another unquestion-
ably Christian symbol:

To forbid the use of this one passive symbol—the
crèche—at the very time people are taking note of
the season with Christmas hymns and carols in pub-
lic schools and other public places, and while the
Congress and Legislatures open sessions with
prayers by paid chaplains would be a stilted over-
reaction contrary to our history and to our holdings.
If the presence of the crèche in this display violates
the Establishment Clause, a host of other forms of
taking official note of Christmas, and of our reli-
gious heritage, are equally offensive to the Constitu-
tion.

465 U.S. at 686 (emphasis added). Here too, removing the
Cross, which has stood on Mt. Soledad since 1913, would be
an over-reaction. Similarly, in McGowan v. Maryland, the
Court upheld laws that originated from one of the Ten Com-
mandments: a prohibition of sales of merchandise on Sunday.
366 U.S. 420, 431-40 (1961). Each of these cases involved
something that was religious in nature. But none violated the
Establishment Clause. Why? Because the context in which
they existed and the relevant history made it clear that they
had not only a religious element to them, but they also served
a secular purpose.

The principal defect of the panel’s decision is its concentra-
tion on facts which occurred between 1913 and 2006. The
City of San Diego is no longer the owner of the property. The
federal government now owns the property. Thus, the use to
18980 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
which the City of San Diego put the Mt. Soledad Cross from
1954 to 2006, just as the use to which the private group put
the Cross from 1913 to 1954,6 is not relevant as to whether the
present use by the government—the precise use which plain-
tiffs seek to enjoin—constitutes an endorsement of religion.

True, local and state governments can also violate the First
Amendment, and at times in the past, they have owned the
Memorial site and the Cross. But they do not own or control
the site and Cross now and the only relief Plaintiffs seek is an
injunction against the federal government. Were this an action
for damages against private owners and the City of San
Diego, perhaps we could look backward at what they did. But
it isn’t.

Note that in all other cases where the Court discusses the
history of a monument in general, the monument in question
had always been on government land. Thus, the question
whether the use of a symbol when under private control was
not presented. In the only case where the symbol changed
hands, from the federal government to a private group, the
Court held that change in ownership should be considered.
See Buono, 130 S. Ct. 1803 (plurality op.). Here we have the
contrary situation of land that has been conveyed from a pri-
vate group to the government. What happened while the land
was privately held hardly seems relevant to the issue whether
the government acted to establish religion.

The panel also made a mistake when it decided that the use
of the Mt. Soledad Cross at this memorial in the last five
years does not make a difference. The ownership of the
memorial has changed. Buono, 130 S. Ct. at 1803. The evi-
dence on this issue is undisputed—the federal government has
6
The actions of private parties are particularly irrelevant because only
a governmental entity can violate the Establishment Clause, not the
actions of private citizens. “Congress shall make no law respecting an
establishment of religion . . . .” U.S. Const. amend. I.
 JEWISH WAR VETERANS v. CITY OF SAN DIEGO 18981
used this land only as a memorial to our fallen soldiers and
veterans. The government has not conducted religious ser-
vices at the Cross.

Further, there is no evidence here that the war memorial
was an attempt by the federal government to save an other-
wise solely religious symbol. The non-religious symbols put
up on the Kentucky courthouse walls in McCreary County
were found to be pretextual attempts to change the meaning
of the symbol by the same persons who had installed the Ten
Commandments in the first place. See McCreary County, 545
U.S. at 862. The non-religious plaques and bollards installed
by private parties at Mt. Soledad in 2000, however, cannot
serve as evidence of pretext on the part of the federal govern-
ment that had nothing to do with the placement of these
objects, and indeed did not even acquire the land upon which
the objects had been placed until six years later.

The history and use of the site have changed, from sunrise
Easter services to use solely for secular services, primarily
military ceremonies. For example, in 2004 the following cere-
monies took place at the Memorial: two military reunion
group gatherings, two Navy retirement ceremonies, a cere-
mony dedicating a bollard for the Kaneohe Klippers, and
about thirteen ceremonies honoring veterans. In 2005, there
were sixteen ceremonies honoring veterans, one re-enlistment
ceremony, one change of command ceremony, and one mili-
tary reunion group gathering. In 2006, there were two re-
enlistment ceremonies, one commission ceremony, two mili-
tary reunion group gatherings, and about twenty-eight cere-
monies honoring veterans.

There is no evidence in the record that any religious cere-
monies have taken place at the Memorial since the federal
government acquired the property.

Despite this evidence, the panel held that the message the
Mt. Soledad Cross conveyed did not change over time. 629
18982 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
F.3d at 1117. This is contrary to Supreme Court precedent,
which when looking at a case involving a display of the Ten
Commandments on public land, held “people ‘reinterpret’ the
meaning of these memorials as ‘historical interpretations’ and
‘the society around them changes.’ ” Pleasant Grove City,
Utah v. Summum, 555 U.S. 460, 129 S. Ct. 1125, 1137 (2009)
(citation omitted). Pleasant Grove’s language is particularly
apt where, as here, the central inquiry is, “What is the present
government owner expressing by its use of the Cross?” and
not what a previous “creator or donor” expressed:

[I]t frequently is not possible to identify a single
“message” that is conveyed by an object or structure,
and consequently, the thoughts or sentiments
expressed by a government entity that accepts and
displays such an object may be quite different from
those of either its creator or its donor.

Pleasant Grove, 129 S. Ct at 1136. Here, the same can be
said. The federal government’s “thoughts or sentiments” may
be quite different from those of the Memorial Association (the
creator) and the City of San Diego (the donor), former owners
of the Memorial site.

The evidence of the changing use from a religious symbol
in 1913 to exclusively a memorial symbol before the federal
government acquired the land in 2006 was particularly rele-
vant for determining whether the federal government has vio-
lated the Establishment Clause. After all, religious symbols
can and do change. St. Nicholas of Bari (270-343, A.D.), the
Catholic Bishop of Myra, was famous for putting coins in the
shoes of persons who left them out for him and for making
anonymous gifts to children. See http://www.newadvent
.org/cathen/11063b.htm; http://en.wikipedia.org/wiki/Saint_
Nicholas (both last visited August 17, 2011). Over the years,
he became the model of present day Santa Claus. That he is
still revered as the patron saint of repentant thieves hardly
 JEWISH WAR VETERANS v. CITY OF SAN DIEGO 18983
affects his jolly and beneficent image to countless children
and adults.

IV. At the very least, the case should be remanded for
trial.

When the opposing party fails to produce evidence on an
essential element of his claim—here, that the federal govern-
ment’s use of the Cross was for religious purposes rather than
for secular, memorial purposes—our case law is well settled
that summary judgment should be granted to the movant.
Lopez v. Pacific Maritime Ass’n, 636 F.3d 1137, 1201-02 (9th
Cir. 2011). Here, the district court correctly granted summary
judgment to the government.

If, in determining whether a reasonable observer aware of
all the circumstances would conclude the Cross constituted a
governmental endorsement of religion, evidence other than
the use by the federal government is considered relevant, then
at the very least the conflict in such evidence in our record
requires that the case be remanded for trial. The panel errone-
ously ordered that the district court should have granted
appellants’s motion for summary judgment.

In its “fact intensive” analysis,7 the panel’s opinion failed
to discuss the expert evidence presented by the federal gov-
ernment in support of its cross-motion for summary judgment.
Of course, we must consider this evidence when deciding
whether the government raises a triable issue of material fact.
Many of the factors relevant to determining the government’s
use of the site, the physical setting, and the history are set
7
The panel also considered such irrelevant material as the anti-Semitic
practice of realtors in La Jolla to bar Jewish buyers from settling there dur-
ing the early part of the century, when the Cross was in private hands—
a practice that has nothing to do with Mt. Soledad or this Cross—while
at the same time it discounted the relevant evidence of how the federal
government has used this Memorial.
18984 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
forth in the declaration of Alan S. Newell, President of, and
a Senior Associate Historian with, Historical Research Asso-
ciates, Inc. and a professor of history at the University of
Montana. He points to the following:8

(1) the elimination at Mt. Soledad Memorial Park
of Easter and other religious services since 1998;

(2) the fact that when the Cross was replaced in
1954, the Mt. Soledad Memorial Association
(“MSMA”) continued efforts already begun by
American Legion Post 275, a secular organization, to
erect a new Cross “as a war memorial”;

(3) the newspaper accounts describing the site to
the public as “a memorial to all those who have died
in all our wars.” Several newspaper reports empha-
sized the Memorial aspect of the Cross. The North
Shores Sentinel stated in February 1954 that the
rebuilt Cross would be dedicated ‘as a memorial to
American war dead’ while the La Jolla Journal
reported in April 1954 that the Cross ‘will be a
memorial to those who died in the last three wars.’
Other newspapers noted that Admiral Miller would
‘dedicate the Cross to the memory of all those who
have given their lives in the nation’s wars and that
the Cross ‘is meant to be a lasting memorial to the
dead of the two world wars and the Korean fight-
ing’ ”;

(4) the memorial services held increasingly from
1972 onwards on Veterans’ Day and other secular
memorial days, weather permitting;
8
I beg the reader’s pardon for the following rather lengthy relation of
evidence in the record, but I thought it necessary to point out just how
clear is the basis for a trial of the basic issue of fact: would the “reasonable
observer” necessarily view the Cross as a government endorsement of reli-
gion or as marking the site of a war memorial?
 JEWISH WAR VETERANS v. CITY OF SAN DIEGO 18985
(5) the placement of the more than 2,100 individ-
ual, permanent memorial plaques and 23 bollards to
servicemen and women who fell in the country’s ser-
vice, since the 1970s;

(6) the view of the monument, not from the free-
way where only a portion of the monument can be
seen, but on the ground at the monument, where the
plaques, bollards, flag and walls, as well as the dedi-
cation and name of the Memorial, can be seen; and,
most importantly,

(7) the Congressional enactments under which the
land was condemned and taken from the MSMA,
with explicit statements of the purpose the land and
symbol be taken for the public good of establishing
a federal memorial to the memory of the fallen sol-
diers.

Similarly, the panel found the declaration of Professor
Edward T. Linenthal, the government’s expert on military his-
tory, to be merely conclusory, and summarily dismissed it as
bearing no proof on the issue whether the Cross has achieved
a secular, memorial meaning, quite apart from its religious
meaning. See Jewish War Veterans, 629 F.3d at 1112, n.12.
But this surely is an inaccurate and somewhat unfair reading
of Professor Linenthal’s declaration, particularly when it is
entitled to every inference in its favor as proffered by the non-
moving party in opposition to Jewish War Veterans’ motion
for summary judgment.9

On the issue whether the Cross has acquired a secular
9
As the panel recognized but, alas, failed to follow, “We must deter-
mine, viewing the evidence in the light most favorable to . . . the nonmov-
ing party, whether there are any genuine 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).
18986 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
meaning, Professor Linenthal was hardly “merely conclu-
sory”; he cited several crosses used in American soldiers’
memorials: “the Canadian Cross of Sacrifice [commemorating
American fallen in Canada’s forces before America’s entry
into World War I], the Mexico Civil War Memorial and the
Argonne Cross Memorial at Arlington National Cemetery; the
Irish Brigade Monument at Gettysburg National Military
Park; a memorial to American servicemen who endured the
Bataan Death March in World War II in Taos, New Mexico;
an American Legion War Memorial in La Mesa, California;
the Mojave Desert Cross in Mojave National Preserve; and
the Father Junipero Serra statue (holding [a] cross) in the U.S.
Capitol.” In concluding that the Cross lacks a broadly under-
stood meaning as a symbol of memorialization, the panel dis-
counted certain important record facts: 114 Civil War
monuments include a cross; the fallen in World Wars I and II
are memorialized by thousands of crosses in foreign cemeter-
ies; Arlington Cemetery is home to three war memorial
crosses, and Gettysburg is home to two more; and military
awards often use the image of a cross to recognize service,
such as the Army’s Distinguished Service Cross, the Navy
Cross, the Air Force Cross, the Distinguished Flying Cross,
and the most famous cross meant to symbolize sacrifice—the
French “Croix de Guerre.”10

The history behind these crosses and the simple fact that a
cross has been used throughout this Nation’s history as a sym-
bol of respect for veterans and fallen soldiers and their valor
is significant. In Van Orden, the Court looked to the role of
the Ten Commandments in our Nation’s history as one decid-
ing factor in its analysis. See 545 U.S. at 688-90.
10
In 1994, when President Bill Clinton visited the beach at Normandy
in memory of D-Day, he stopped on the beach and arranged some stones
into a cross in memory of the soldiers who died there. Maureen Dowd, On
Washington; Beached, N.Y. Times, June 19, 1994, available at
http://www.nytimes.com/1994/06/19/magazine/on-washington-beached
.html?scp=1&sq=bill+clinton+normandy&st=nyt. For a photograph, see
http://farm5.static.flickr.com/4131/4846400853_798d649a4a.jpg.
 JEWISH WAR VETERANS v. CITY OF SAN DIEGO 18987
Just as important, the statute by which the federal govern-
ment acquired ownership of the Memorial expressly states
that Congress sought “to preserve a historically significant
war memorial.” Pub. L. 109-272 § 2(a). Congress specifically
made the following findings about Mt. Soledad:

The 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 multifaceted Mt. Soledad
Veterans Memorial that is replete with secular sym-
bols.

The patriotic and inspirational symbolism of the Mt.
Soledad Veterans Memorial provides solace to the
families and comrades of the veterans it memorial-
izes.

The Mt. Soledad Veterans Memorial has been recog-
nized by Congress as a National Veterans Memorial
and is considered a historically significant national
memorial.

An Act to Preserve the Mt. Soledad Veterans Memorial in
San Diego, California, by Providing for the Immediate Acqui-
sition of the Memorial by the United States, Pub. L. No. 109-
272, § 1, 120 Stat. 770, 770 (2006).

The legislative history also contains a letter from the lead-
ers of this country’s four largest veterans service organiza-
tions, which explains that the potential destruction of the
Memorial is considered an affront to veterans. 152 Cong. Rec.
H5423-24 (daily ed. July 19, 2006).11 As Representative
Hunter—one of the co-sponsors of the House’s version of the
11
A point also made by Justice Alito in Buono. See 130 S. Ct. at
1822-23.
18988 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
bill—stated when introducing the Mt. Soledad Veterans
Memorial Protection Act:

The fight to save the Mt. Soledad Veterans Memo-
rial is not about religion. It’s about protecting a sym-
bol of our freedom and honoring those who have
chosen to defend it [at] all costs. Removing this long
recognized and respected landmark is an insult to the
men and women memorialized on its walls and the
service and sacrifice of those who have worn a uni-
form in defense of our nation.

As Representative Hunter explained on the House floor, the
Memorial is “without question a world-class war memorial,
dedicated to all of those, regardless of race, religion or creed,
who have served our armed services.” 152 Cong. Rec. H5422
(daily ed. July 19, 2006).

Any person acquainted with all the relevant evidence and
wishing to determine whether the government meant for the
Cross to have a religious or secular use would take Congress’s
findings into account.12 Surely Congress’s findings are far
more relevant than the anti-Semitic practices of realtors in the
county in the early part of the last century. Yet the panel
emphasized the latter and failed to consider the former.

When determining the issue whether a cross is traditionally
a memorial symbol for the fallen servicemen, we should grant
some deference to the reflection of the popular understanding
of the symbol, as established by Congress. See Buono, 130 S.
Ct. at 1818 (Congress has the discretion to enact “a frame-
work and policy of accommodation for a symbol [a cross] that
12
Certainly Justice Kennedy took into account Congress’s findings that
the Cross was part of a memorial in his stay order entered in this case, not-
ing Congress “deemed the monument ‘a national memorial honoring vet-
erans of the United States Armed Forces.’ ” San Diegans for Mt. Soledad
War Memorial v. Paulson, 548 U.S. 1301, 1312 (2006).
 JEWISH WAR VETERANS v. CITY OF SAN DIEGO 18989
. . . has complex meaning beyond the expression of religious
views”); Walters v. National Ass’n of Radiation Survivors,
473 U.S. 305, 320 (1985) (“deference to congressional judg-
ment must be afforded even though the claim is that a statute
Congress has enacted” is unconstitutional).

One would think that following our long-stated rule requir-
ing all inferences to be given in favor of the non-moving
party’s evidence (here, the federal government), the panel
would recognize there is at least a triable issue of fact as to
whether the federal government has used the site for religious
purposes, whether the Cross conveys a predominantly reli-
gious or secular message given its setting, and the relevant
history of the site. After all, the conflicting expert witnesses
on this issue have not been cross-examined as to possible
prior inconsistent statements, bias or motive. Their qualifica-
tions and demeanor have not been assessed by the trier of fact.13
13
We should allow the trier of fact in this case to determine the Van
Orden elements just as a trier of fact determines what a reasonable man
would do in a negligence case. Indeed, even if the Lemon test is used,
courts have analogized the “reasonable observer” or “objective observer”
in the Endorsement Test to the reasonable man standard in tort law. See,
e.g., Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753,
779-81 (1995) (O’Connor, J., concurring in part and concurring in the
judgment) (“In this respect, the applicable observer is similar to the ‘rea-
sonable person’ in tort law, who ‘is not to be identified with any ordinary
individual, who might occasionally do unreasonable things,’ but is ‘rather
a personification of a community ideal of reasonable behavior, determined
by the [collective] social judgment.’ ”) (quoting W. Keeton, D. Dobbs, R.
Keeton, & D. Owen, Prosser and Keeton on Law of Torts 175 (5th ed.
1984)).
Again, when determining whether a display has the impermissible effect
“of communicating a message of governmental endorsement or disapprov-
al” of religion, we “look[ ] through the eyes of an objective observer who
is aware of the purpose, context, and history of the symbol. The objective
or reasonable observer is kin to the fictitious ‘reasonably prudent person’
of tort law.’ ” American Atheists, Inc. v. Davenport, 616 F.3d 1145,
1159-60 (10th Cir. 2010) (citations omitted).
18990 JEWISH WAR VETERANS v. CITY OF SAN DIEGO
Conclusion

Removal of the Cross at this stage would pose a different
Establishment Clause problem: hostility towards the role reli-
gion has played in our history, and in particular to the history
of the Armed Forces. As Justice Breyer warned:

[T]o reach a contrary conclusion here, based primar-
ily on the religious nature of the tablets text would,
I fear, lead the law to exhibit a hostility toward reli-
gion that has no place in our Establishment Clause
traditions. Such a holding might well encourage dis-
putes concerning the removal of longstanding depic-
tions of the Ten Commandments from public
buildings across the Nation. And it could thereby
create the very kind of religiously based divisiveness
that the Establishment Clause seeks to avoid.

Van Orden, 545 U.S. at 704.

Except for a brief two-year period, there has been a cross
on the site since 1913. No challenge was brought to the Cross
until 1989; it stood unchallenged for 76 years. This is signifi-
cant because in Van Orden the Court found it “determinative”
that the Ten Commandments monument had stood in the
Texas park unchallenged for 40 years. Justice Breyer said this
“suggest[ed] more strongly than any set of formulaic tests that
few individuals, whatever their system of beliefs, are likely to
have understood the monument as amounting, in any signifi-
cant detrimental way, to a government effort to favor a partic-
ular religious sect [or] primarily to promote religion over
nonreligion.” Id. Justice Breyer reasoned that the passage of
40 years suggests that visitors would simply consider the reli-
gious aspect of the display as part of “a broader moral and
historical message reflective of a cultural heritage.” Id.

San Diego is heavily influenced by and dependant on the
Armed Forces. Situated between Camp Pendleton and Naval
 JEWISH WAR VETERANS v. CITY OF SAN DIEGO 18991
Base San Diego, Mt. Soledad is a memorial to the sacrifice
made by many soldiers who have protected this country over
the years, regardless of their religion. And it is a promise to
those current soldiers, a promise that we appreciate the sacri-
fice they are willing to make for our freedom and that, if they
pay the ultimate price, we will remember them. The Cross has
stood at the entrance to this memorial for almost 100 years.
It has taken on the symbolism of marking the entrance to a
war memorial. We should leave it be.