Mt. Soledad decision may be U.S. Supreme Court's third memorial cross case to bear

SAN FRANCISCO — Alliance Defense Fund attorneys involved in numerous memorial cross cases around the country say the latest court decision involving the Mt. Soledad Veterans’ Memorial in San Diego marks an important milestone. The case could be the third major controversy involving such crosses to head to the U.S. Supreme Court in recent years and is the fourth recent federal case--all of which has led to increased public discussion on the subject.

“The political agenda of secularist groups should not be allowed to uproot memorials that honor the sacrifices of America’s fallen heroes and their families,” said ADF Senior Counsel Joseph Infranco. “The strong dissent in the Mt. Soledad case filed Friday by five 9th Circuit judges made that completely clear. The use of a cross in a military memorial does not in any way ‘establish’ a religion. The cross is there to honor the fallen.”

The dissent accompanying Friday’s decision by the U.S. Court of Appeals for the 9th Circuit not to rehear a ruling against the cross in Trunk v. City of San Diego took note of Congress’ constitutionally sound purposes in creating the memorial. The dissenting judges noted, “The United States has a long tradition of memorializing members of the Armed Forces who die in battle with a cross or other religious emblem of their faith…. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.”

The decision not to rehear the case opens the door for it to be reviewed by the U.S. Supreme Court. The high court concluded just last year in Salazar v. Buono that another veterans’ memorial, a cross standing in California’s Mojave Desert, did not have to be removed: “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm…. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society,” the high court wrote.

The 9th Circuit’s dissent took note: “If the Mojave Desert cross standing by itself, with only a single plaque, can be understood as a memorial to fallen soldiers, 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.”

ADF filed friend-of-the-court briefs in the Mt. Soledad and Mojave cross cases on behalf of the American Legion Department of California.

In a memorial cross case currently being considered for review by the Supreme Court, ADF attorneys represent the Utah Highway Patrol Association as defendants. That case, filed by American Atheists, seeks to tear down roadside memorial crosses honoring fallen state troopers in Utah. In its Mojave Cross decision, the Supreme Court, which was aware of the Utah case because of a brief filed by ADF attorneys, wrote, “A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs.”

American Atheists is also attempting to tear down the World Trade Center cross at the 9/11 Memorial and Museum in New York City in a lawsuit filed in federal district court in July. ADF, which represents the New York Retired Firefighters Association, plans to file a friend-of-the-court brief in that case.

ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith. Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.