Why the Mt. Soledad cross and its like are unconstitutional

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Mount Soledad Cross

Wikimedia Commons

Mount Soledad Cross

Mount Soledad Cross

Mount Soledad Cross

‘Tis the season to be fighting over religious displays on public land, so it was fitting that the San Diego federal judge who upheld the constitutionality of the cross on Mt. Soledad a few years ago turned thumbs down on it yesterday. In all likelihood, the long-running controversy will end up being decided by the U.S. Supreme Court.

Erected in 1954, the cross is the third in a series that began in 1913, when a group of private citizens placed a wooden cross on the site in the Mt. Soledad Natural Park in La Jolla. It was long known as the Easter Cross, and in its several versions served as a place for intermittent Christian worship. Then, in 1989, a lawsuit was filed charging violations of both the state and federal constitutions and two years later a federal judge found in favor of the plaintiffs.

Subsequently a variety of ways to preserve the cross were sought, including turning the site into a full-blown veterans’ memorial and transferring ownership of the property to the federal government. But in 2011 the Ninth Circuit Court of Appeals ruled against it, and the Supreme Court declined to accept the case the following year. Yesterday’s decision by Judge Larry Burns was made under terms prescribed by the Ninth Circuit.

Establishment Clause doctrine regarding public religious displays is in sufficient flux that the Supreme Court could decide to let the Mt. Soledad cross stand. For now, however, the operative principle is that displays on public land are impermissible if they suggest a government endorsement or preference for a particular religious belief or practice. That’s why Allegheny County (1989) crucially distinguishes between a single religious display and multiple ones in a given public place. The former suggests a governmental religious preference; the latter, mere recognition of the populace’s plural religious commitments. In line with that principle, officials at Shaw Air Force Base in South Carolina the other day removed a Nativity Scene set up near a lake on the base when no non-Christian group saw fit to place a holiday display of its own on the site.

What’s going on here is a fight over Christian claims on the country’s civic spaces. As those claims are contested, in court and elsewhere, there’s push back, most evident in the annual railing against the supposed war on Christmas. What’s seems to be prevailing is not a secular public square limited to civic symbols accessible to all, but a Pantheon for everyone’s spiritual wares. Consider the grounds of the Capitol in Oklahoma City, where a Ten Commandments monument installed under a 2009 law may soon be joined by a Satanist memorial and a statue of the Hindu monkey god Hanuman.

“I stand by my comments that we are a faith-based nation,” said Rep. Earl Sears (R- Bartlesville), “and I know that once you open the door on this sort of thing that you can’t know where or how it will end up.” Like it or not, the door is now wide open.

  • Chad

    It seems to me that this whole issue has been overly complicated by the so-called non-preferential interpretation of the Establishment Clause. There is a vast difference between having a preference for a particular religion and making a law respecting the establishment of one. The EC is merely there to prohibit the government from passing a law…that respects the establishment of religion. Period. An excellent prohibition indeed!
    But we have gone well beyond that relatively simple prohibition. Now we feel like we have to examine under a microscope every cross, crèche, Bible, menorah, etc. on public land in order to determine if it is somehow considered a government “endorsement or preference” of a particular religion or practice. No wonder we are so confused.

  • Let’s assume for the sake of argument, Chad, that what we had was licit preferentialism along the lines that you suggest. Would it be OK for judges to place large crosses next to the American flags in their courtrooms, and for citizens to erect large crosses in front of city halls and state capitols? If not, why not?

  • Larry

    That is an overused and frankly, dishonest argument.

    The establishment of religion has been interpreted to mean any kind of sign which shows preferential treatment of a given faith. Endorsement of a religion is establishment of that religion. Your definition of the EC robs it of meaning and purpose.

    There are two ways religious displays can be handled when they are on government property:
    1. Remove it entirely, keeping everything religion-free; or
    2. Using many religious symbols in an area to show that the government respects not only one religion but all of them.

    Every creche, menorah and Bible displayed on public grounds have to be subject to scrutiny because you do not want to give the impression that only one faith will receive the full benefit of the government. Big friggin crosses on public land tell people that only Christianity is taken seriously by government and all others will be not be respected. This is establishment of religion.

    If it wasn’t for people insisting on hijacking government to suit their sectarian ends, we would not have such problems. The cross wasn’t even put up by the government. People just wanted to appropriate government land for Christianity.

  • Nate

    Serious question: Where would be the dividing line between displays of religion and displays of ideology, and displays of, say, rememberance.

    For instance, regarding ideology: If I wanted to erect statues of prominent American deists who signed the Declaration of Independence, as a testament to how deism contributed to American constitutionalism, would that be in violation? Or, even weirder, if I wanted to construct a giant right triangle to celebrate the contributions of Pythagoras to mathematics, would that be a violation (especially since he did found his own religion)?

    Or in terms of rememberence: If I erected a holocaust memorial with Jewish symbols as a reminder of what the tyranny of government can do to minority people? Or, if I erected a cross for the purpose of reminding people how gruesome government sponsored capital punishment can be?

    And finally, what if a public building was constructed with geometric shapes as part of the design that could be taken as religious symbols (let’s say crosses or crescents)? Could a court room have a light fixture that looked just like a minorah, but it wasn’t a minorah, just a light fixture?

    The fact that such a variety of borderline situations can be easily imagined, and the fact that courts have gone back and forth deciding these kinds of cases, seems to tell me that the very way we have the issues framed is probably in error, or at least not helpful. And saying that, I don’t have a solution myself. I have a hunch that the extremes of theocracy on one side and absurdist pluralism on the other side are equally unhelpful. But given the choice, I’ll go with absurdist pluralism. Perhaps we can do a monumental version of dedicated free speech areas, where any group can put a monument to anything they want. Sort of a postmodern Acts 17 style “Mars Hill”, where all the god(s) get their altar.

  • John

    Lets be honest here and quit tiptoeing around the reality here. There is a growing number of people who are not just ambivalent toward religious faith (especially Christianity) but who believe religion is a restrictive and harmful influence on human culture and would prefer to see it sanitized from every public space possible.

  • Larry

    Lets be even more honest here. There is a well established number of people who feel that their Christian faith should be intertwined with government to the point of excluding all other religions from consideration. People who constantly attack the separation of church and state which protects all faiths. The people you described are a reaction, not a cause.

    They are usually the same folk who talk of the country being a “Christian Nation” in order to assert some kind of unearned privilege over others with regards to their religious faith. They have been known to vociferously object when our government chooses to recognize some faith other than Christianity in some manner.

  • Ian Clark

    Hi Mark,

    I know this comment was not addressed to me, but I’d like to take a stab at it.

    For me, I would want to draw a distinction between using the cross as a symbol – even an exclusively Christian one – and using religion as the exclusive basis for civil decisions.

    A court, city hall, or capitol is not an appropriate place for religious symbolism in a religiously plural and legally secular nation. This is because placement of religious items – such as the 10 commandments or cross – says “it is in this belief that I enact my decisions, not the Constitution”.

    It is entirely different, though, to use the cross or religious symbolism at a place of memorial, sympathy, and rest. Places such as these – like this veterans memorial – are not places were decisions are made. They are places where we reflect and memorialize the lost. Here, the cross represents sacrifice, the urgent need for peace, as well as the primary religious convictions of those whom it is meant to memorialize.

    Yes, in this particular case the symbol is exclusive (unlike a cemetary) and not exactly discrete. However, it doesn’t lead me (and I can only speak for myself) to think the government is biased in the manner in which it legislates or decides – because this isn’t a place of legislation or decision. Rather, it makes me think that the government has a belief that the religious convictions of its vets matter.

  • Hi Ian,
    The distinction you make is analytically interesting, but I don’t really see why the memorial function would make a religious symbol less of an establishment than the decision-making function — albeit the practical importance is evident. To be, the Soledad cross seems more of a problem as part of a full-fledged veterans memorial than as long-standing feature of a city park. The former is formal and official, the latter an historical anomaly.

  • Steve

    John, you are exaggerating for the purpose of argument in order to scare people.

    What people without faith want is that religion should be scrubbed from every GOVERNMENTAL space possible. All they want is the government to hold to its written rules, and that the two should never be entwined.

    Most of us have no problem whatsoever with public, non-governmental expressions of faith. If your church owns a plot of land and wants a nativity scene, go ahead! Light it up, makes for a nice holiday scene. If the city rents out spaces in a park for whatever use and you want to rent it for your nativity scene, go ahead! Just as long as you don’t get any preferential treatment in the rental process, have at it.

    What we have a problem with is governmental ENDORSEMENT of a particular religious belief, whether explicit or implicit. Keep them forever separate. You are free to do whatever you want with PRIVATE money on PRIVATE land.

  • Ian Clark

    Hi Mark,

    I don’t think it makes it less of an establishment, per se. My point is not that the cross is on public land, but that its existence on public land does not necessarily indicate a formal endorsement of a given religion or prohibit the free exercise of non-Christian religion.

    Consider this: if we go to Arlington National Cemetary – certainly government property – we will see an abundance of crosses and Christian religious imagry. This has been upheld by the courts on the basis that other, non Christian, symbols are also permitted (a member of the Bah’ai faith could freely have his respective symbol on his grave, as could a Muslim, or even an atheist). In this sense, while overwhelmingly Christian, it is not exclusively so.

    In the same sense, I think it is important to place this site in context. Looked at in a vaccuum, I would concur – this seems a glowing endorsement of Christianity. But does it speak for the whole of the California legislative or judicial process? Do we have any evidence that the government of California, though its actions, have made a “law respecting an establishment of religion, or prohibiting the free exercise thereof”? Is a California Muslim less free and secure to practice his faith because of a cross at a veterans memorial, for example? I see no evidence of this, in fact I see copious evidence to the contrary.

    Just as we can’t look at a single cross at Arlington and say it is an endorsement of religion, I think we equally need to look at the “big picture” here. Thoughts?

  • cken

    What evidence is there that belief in God is any more or less harmful to society than to believe there is no God.

  • Fakey McFake

    It strikes me that there’s an obvious middle ground here of auctioning off the cross and the land under it, thus avoiding its destruction while negating any claims of government religious partiality. An auction further avoids signs of preference by making the recipients pay; indeed, it also gives opponents the chance to outbid and tear it down if they want.

  • Ian Clark


    I think that, often, in dealing with religious symbolism we are confronted by these sorts of situations which you have addressed. To me, a seperation of church and state does not mean that the state trumps or negates religion: on the contrary, the state accepts religious identity without incorporating it to its legislative or judicial process.

    Consider the National 9/11 Memorial/Museum in NYC. The land is owned by the Port Authority of NY/NJ – a state governmental body authorised by Congess. It is also funded in no small part by governmental funds. The so-called 9/11 cross (steel beams from the WTC resembling a Christian cross) is being located there.

    While originally a “fluke” (it wasn’t designed as a cross, of course), it was certainly viewed as a religious symbol or a symbol of hope. And it was stored at a Catholic Church where it was blessed, etc.

    And so here the question is: Can a publically funded institution have a cross on its property and also claim to be secular?

    The answer, I think, is absolutely. Go the Smithsonian, you’ll see countless historical crosses telling a historical or social story. The 9/11 cross is no different. It isn’t there to be venerated, it is there to provide a historical framework to help us understand the complex, yet real, emotions of what happened.

    The cross in California is no different for me. It isn’t there as a place of veneration. It is there as a place of memorial.

  • Chad

    Fair question Mark. “Would it be Ok…?” That would depend on who you asked. As a matter of decorum I see no problem with a presiding judge or chief justice prohibiting his courts from displaying religious symbols. The question however is what is or isn’t constitutional. Would the judge in your example be violating the EC by displaying a cross next to the flag. In my understanding of what is expressly prohibited in the EC he would not. If you asked Larry however I guess he would be in clear violation:-)

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