New Chapter Opens in the Fight to Defend Mt. Soledad Veterans Memorial

October 16, 2014

This week Liberty Institute heads back to the U.S. Court of Appeals for the Ninth Circuit and files an opening brief 

This week, Liberty Institute and our volunteer attorneys filed an opening brief on behalf of the Mt. Soledad Memorial Association (MSMA) in the Trunk v. United States of America and Mt. Soledad Memorial Association,which is again at  the U.S. Court of Appeals for the Ninth Court—after the U.S. Supreme Court denied the request by the MSMA to review early the case this past July.

“We’re continuing to fight for this veterans memorial and the selfless sacrifice and service of all the millions of veterans it represents,” said Liberty Institute President and CEO, Kelly Shackelford.  “It is the least we can do for those who gave so much to us all.” 

Liberty Institute’s Director of Litigation Hiram Sasser adds, “If this cross comes down, then the World War I cross memorials at Arlington National Cemetery and elsewhere will be open targets for destruction or removal.”


The Mt. Soledad Veterans Memorial has stood since 1954 as a symbol of the selfless sacrifice and service of our nation’s military.  Standing high on a hilltop in San Diego, California, the memorial includes a 29-foot cross with a plaque identifying it as a veterans memorial and is surrounded by eleven large granite walls that display the photos and names of our veterans, along with various and diverse religious and secular symbols.  Over 3,500 Americans are honored—including presidents (Ronald Reagan, Dwight Eisenhower), generals, and men and women whose names are not familiar, but who proudly served to help preserve the freedom we enjoy as Americans.

For more than 20 years, this veterans memorial has been the subject of a lawsuit brought about by the American Civil Liberties Union (ACLU), which claims the memorial’s cross violates the First Amendment’s Establishment Clause.  Liberty Institute, and our volunteer attorney team at Morgan Lewis & Bockius LLP, joined the fight on behalf of the Mt. Soledad Memorial Association to save the Mt. Soledad Veterans Memorial cross in 2012, after the U.S. Court of Appeals for the Ninth Circuit ruled the cross unconstitutional.


Here are a few of the major milestones (click here for an entire list) of how Liberty Institute has ramped up the efforts in this important fight:

  • February 2012 – On behalf the Mt. Soledad Memorial Association,(“MSMA”) Liberty Institute filed a petition with the U.S. Supreme Court seeking to have the Ninth Circuit decision overturned. The next month, the U.S. Department of Justice also joined the appeal.
  • June 25, 2012 – The U.S. Supreme Court denied the petitions to hear oral arguments in the case at that time.
  • July 2012 – The ACLU sought to have the MSMA removed from participating any further in the case as a party.
  • October 2012 – The federal district court judge rejected the ACLU’s attempt to remove the MSMA from the case, granting their request to intervene as a party.
  • 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.
  • 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.  But the judge did grant a stay, giving Liberty Institute and our client the opportunity to appeal, which we did a few days later.
  • February 2014 – The U.S. government joined Liberty Institute and the MSMA in appealing the ruling.
  • March 2014 – Liberty Institute filed a petition asking the U.S. Supreme Court to hear the case immediately.
  • April 2014 – Numerous friend-of-the-court briefs poured into the U.S. Supreme Court in support of Liberty Institute’s petition.
  • June 30, 2014 – The Supreme Court denied the request by the MSMA to review the case early.
  • October 15, 2014 – Liberty Institute filed an opening brief in the Ninth Circuit.


The first Korean War Veterans Memorial placed on U.S. soil, the memorial’s plaques commemorate the service of veterans, living and deceased, from the Revolutionary War up to the current conflicts in Iraq and Afghanistan—and it’s the only memorial in the nation which does so.  Over half of the veterans have been honored while still living, including these service members:

  • Captain Joseph John, USN (Ret) – whose daughter Jessica John Gercke says of Mt. Soledad Veterans Memorial:  “This is such a wonderful, wonderful place, and I’m so happy that I have had the opportunity to get a plaque for my father while he is still alive.  What an honor this was for him to get to experience this with his family all around him.”
  • Brian “Iron Ed” Hiner, Lieutenant Commander, U.S. Navy – Afghanistan, Iraq, Philippines – “What an honor it is to have a place on this wall.  Such great men and women who have served and sacrificed for this country!”
  • Mary Earle Greenwald, Hospital Apprentice First Class, U.S. Navy – World War II – “My husband [James Greenwald, Lieutenant Junior Grade, U.S. Navy, USS McGinty (DE-365), Pacific Theater, Japan – World War II] and I each have a plaque on this wall.  My grandson Ed [Hiner] has his plaque up there, and I’m extremely proud of my family’s service.”


The Mt. Soledad Memorial Association is comprised of veterans, who originally erected the Veterans Memorial in 1954 and have served as caretakers of the veterans memorial for more than half a century. 

Each day this case lingers unresolved, the Greatest Generation fades into history with the Memorial that honors them (and veterans of all wars) still under threat of destruction.

Liberty Institute volunteer attorney Allyson Ho, co-chair of the U.S. Supreme Court and Appellate Litigation Practice at Morgan, Lewis & Bockius LLP,  serves as lead counsel for the MSMA and is leading the efforts to protect the Mt. Soledad Veterans Memorial Cross.


Liberty Institute will never back down and is committed to this fight to save Mt. Soledad Veterans Memorial Cross in yet another phase of the battle.  And it’s our honor to defend memorials like these for men and women who are defending our nation’s freedom both at home and abroad.

But to continue the fight—and others across our great nation—we need the continuing support of friends like you.  So please donate now and help us unleash more attorneys for more cases in the church, in schools, in the public arena and in the military!

Other stories:

Interview with a Volunteer Attorney: Allyson Ho

5 FACTS:  How the Supreme Court’s Same-Sex Marriage “Non-Decision” Impacts Religious Liberty

About Liberty Institute
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