Yesterday, a three-judge panel of the 9th Circuit Court of Appeals unanimously decided that a 43-foot cross in a federally owned, California public park serving as a war memorial is unconstitutional “because it conveys a message of government endorsement of religion.” However, the court did not order the removal of the cross, leaving the situation open for “further proceedings” to determine “whether the cross can be modified to ‘pass constitutional muster’ as a war memorial.”
In her opinion, Judge M. Margaret McKeown wrote:
“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…we conclude that the Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion…”
Interfaith Alliance joined a friend-of-the-court brief in this case and we are pleased that the court ruled in favor of the Jewish War Veterans of the United States of America who challenged the memorial’s constitutionality and were represented in this case by our friends at the ACLU. In our brief, we registered our disagreement with the lower court’s conclusion in upholding the cross that it, “communicates the primarily non-religious messages of military service, death, and sacrifice.” To us and our colleagues, such a conclusion “ignores the profound religious meaning of the cross, offends Christians and non-Christians alike, and undermines the animating values of the Establishment Clause.”
We also made three overarching arguments in our brief and we are pleased that these arguments (and of course others) were actually discussed in Judge McKeown’s decision:
- The cross has a long history of use as a burial marker, including in military cemeteries, and as a veterans’ memorial. Reviewing this history leaves no doubt that the cross is a decidedly Christian symbol.
- In light of this history and the continued prominence of the cross as a religious symbol, the effort to justify its public display by branding it as secular offends Christians who cherish the cross and its central place in the tradition and iconography of their faith.
- Once the cross is understood for what it is—an unmistakable symbol of a particular religious tradition—its display by the government sends a message of exclusion and disfavor to those who do not share that tradition.
Based on what we’ve seen in similar cases, (for example in last year’s Supreme Court ruling on the Mojave Desert Cross case Salazar v. Buono) we have reason to be concerned about the fate of this case if it is appealed. We are definitely keeping our eye on the Mt. Soledad case.