ACLU Alleges Memorial Cross is Unconstitutional

Erected in 1954, the Mt. Soledad Veterans Memorial symbolizes the selfless sacrifice and service of America’s military. The memorial is a 29-foot Latin cross surrounded by walls that display the photos, names, and diverse religious symbols of over 3,500 veterans who served and sacrificed for freedom in various periods of American history.

For more than 20 years, this veterans memorial had been the subject of a lawsuit brought about by the ACLU, which claimed the memorial’s cross violated the Establishment Clause of the U.S. Constitution. In January 2011, the U.S. Circuit Court of Appeals for the Ninth Circuit ruled the cross unconstitutional.

Legal Action

In 2004, U.S. Congress passed a resolution designating the Memorial as a “national memorial honoring veterans of the United States Armed Forces.”

In 2006, the federal government acquired the Memorial “to preserve a historically significant war memorial honoring veterans of the United States Armed Forces.”

After the U.S. Congress acquired the Memorial, ACLU filed this lawsuit.

On summary judgment, the federal district court in San Diego held there was no Establishment Clause violation because (1) “Congress acted with the clear-cut and bona fide secular purpose to preserve the site as a veterans’ memorial,” and (2) the primary effect of the Memorial is “patriotic and nationalistic.”

In January 2011, a three judge panel of the Ninth Circuit reversed the district court, holding that the Memorial, “presently configured and as a whole,” violates the Establishment Clause.

Defendants Mt. Soledad Memorial Association and United States of America moved for panel rehearing and rehearing en banc by the entire 9th Circuit.

In October 2011, the full Ninth Circuit denied the requests for rehearing over a dissent by Judge Bea (joined by Judges O’Scannlain, Tallman, Callahan, and Ikuta).

In February 2012, First Liberty Institute, on behalf of the MSMA, filed a petition with the U.S. Supreme Court seeking to have the Ninth Circuit’s decision overturned. In March 2012, the U.S. Department of Justice also joined the appeal.

On June 25, 2012, the Supreme Court denied the petitions to hear oral arguments in the case at that time. As part of the denial, Justice Samuel Alito issued a statement saying the Court’s denial was not a ruling on the merits and the Court might reconsider the case after the district court issued its final order determining the fate of the memorial.

In July 2012, the U.S. Department of Justice and the ACLU advised the district court that they were entering into settlement negotiations without the participation of the MSMA. The ACLU then sought to have the MSMA removed from participating any further in the case as a party, but in October 2012, the federal district court judge rejected the ACLU’s attempt to remove the MSMA from the case and granted the MSMA’s request to intervene as a party.

In July 2013, in advance of a district court hearing, the ACLU submitted its brief in which it proposed its remedy to end the case—tear down the cross.

In December 2013, U.S. District Judge Larry A. Burns of the U.S. Southern District Court for the Southern District of California reluctantly ruled in favor of the ACLU, ordering the historic memorial cross torn down.

However, the judge granted a stay, giving First Liberty and the MSMA the opportunity to appeal. First Liberty and the MSMA did so a few days later. The appeal was a first step toward what many believed was the ultimate destination for the case—the U.S. Supreme Court.

In February 2014, the U.S. government joined First Liberty and the MSMA in appealing the ruling.

First Liberty Requests U.S. Supreme Court to Take Memorial Cross Case Immediately

In March 2014, First Liberty filed a petition asking the U.S. Supreme Court to hear the case immediately—before the case was heard again by the Ninth Circuit, which had previously ruled the cross unconstitutional.

In April 2014, numerous amicus (friend of the court) briefs poured into the U.S. Supreme Court in support of First Liberty’s petition. Briefs were submitted by The American Legion, Attorneys General of 19 states, Ronald Reagan’s United States Attorney General Edwin Meese—one of the most respected legal minds of the last 50 years—members of Congress, and veterans who are honored by some of the more than 3,500 plaques of the Mt. Soledad Veterans Memorial.

On June 30, 2014, the Supreme Court denied the request by the MSMA to review the case early. In conjunction with the Court’s denial at that time, Justice Alito issued a statement stating that because the order to remove the veterans memorial was stayed, the Court would not bypass the normal proceedings to hear the case.

As a result of the denial, the case headed back to the U.S. Court of Appeals for the Ninth Circuit, with a subsequent appeal to the U.S. Supreme Court appearing likely.

Land Transfer to MSMA Protects Memorial Cross

However, in July 2015, in a victory for veterans and religious freedom, the U.S. government sold the Mt. Soledad Veterans Memorial to the MSMA. The sale of the memorial and the surrounding land ended the legal dispute over the memorial’s constitutionality and protected the memorial from the ACLU’s attempt to tear it down.

In a press release the day of the sale, Hiram Sasser, Deputy Chief Counsel at First Liberty, said, “The Mt. Soledad Veterans Memorial Cross has stood since 1954 as a symbol of the selfless sacrifice of our nation’s veterans. Such a sacred memorial should receive our highest honor and protection. Today’s actions will ensure that the memorial will continue to stand in honor of our veterans for decades to come. This is a great victory for the veterans who originally placed this memorial and the Korean War veterans the memorial honors. We thank our lead counsel, Allyson Ho, and her team at Morgan, Lewis & Bockius, who worked tirelessly to defend the memorial, leading to this ultimate victory.”

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