YOU’VE GOT FRIENDS: 27 Strategic Allies Support Liberty Institute’s Defense of Mt. Soledad Veterans Memorial Cross

November 6, 2014

Influential organizations and individuals submit “friend-of-the-court” briefs defending the constitutionality of the veterans memorial’s cross

In a significant legal development, 27 highly influential organizations or individuals joined to submit several “friend-of-the-court” briefs (amicus briefs) defending the constitutionality of the Mt. Soledad Veterans Memorial Cross against an attempt by the ACLU to tear it down.

We are appealing a federal district court decision ordering the cross to be torn down.  We are representing our client, the Mt. Soledad Memorial Association (MSMA), official custodians of the memorial.  Eventually we expect the case to go before the U.S. Supreme Court, but currently the case is before the U.S. Court of Appeals for the Ninth Circuit.   Last month, Liberty Institute filed its opening brief at the Ninth Circuit.

Liberty Institute has worked tirelessly since February 2012 to protect the memorial, located in San Diego, California.  The memorial consists of plaques that include various and diverse religious and secular symbols and honor more than 3,500 veterans—including presidents (Ronald Reagan, Dwight Eisenhower), and men and women who proudly served.  The memorial also features a 29-foot cross as a traditional symbol of sacrifice—but the ACLU and its plaintiffs insist the cross be removed, which would ruin the memorial.


Now 27 allies have stepped forward to urge the appeals court to rule in favor of allowing the cross at the memorial to remain standing.  They have filed amicus briefs—better known as “friend-of-the-court briefs”—which are legal arguments filed in a court action by non-parties to the litigation in order to support the position of one of the parties. Amicus briefs are an incredibly useful tool in litigation, and also act as a sign of support for our side in a case.  (Liberty Institute often files important legal briefs in strategic national cases, some of which have been cited by judges as influencing their decisions in favor of religious liberty.)

“Effective amicus briefs highlight certain legal and factual issues,” says Liberty Institute General Counsel Jeff Mateer.  “They can provide the judge or judges considering the case with different perspectives than those of the parties and discuss ramifications of the court’s ruling.”

In support of Liberty Institute’s recent case filing at the U.S. Court of Appeals for the Ninth Circuit, Liberty Institute’s 27 friends in the battle for religious liberty have filed five separate amicus briefs with the California District Court.  These briefs call upon the court to revoke the District Court’s decision to tear down the Mt. Soledad Veterans Memorial Cross.

Brief #1 – Don’t Destroy Our History
Submitted by:
The States of Texas, Alaska, Florida, Idaho, Indiana, Kansas, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, and West Virginia

Thirteen states banded together to write a brief in defense of the traditional practice to maintain monuments, memorials and public displays that contain a religious element.  They argue that it is “imperative that the courts appreciate the display’s civic value and the disruption that would be caused by requiring their removal.”  The States note that Congress and the President have both deemed the monument “historically significant,” and that the destruction of the monument would “promote the kind of social conflict the Establishment Clause seeks to avoid.”

Brief #2 – Don’t Dishonor Veterans
Submitted by:
David Epstein, Kilma Lattin, Victoria Nenner

Three U.S. Military veterans—David Epstein, Kilma Lattin, and Victoria Nenner—have filed a brief in defense of the mMemorial in order to show that “veterans view the memorial, with the cross incorporated into it, as an appropriate commemoration for those soldiers—of all faiths and none—who have honorably and with great pride, served their country.”  The monument matters a great deal to these veterans: men and women know what it means to serve.

  • Retired U.S. Army Colonel David Epstein served as Company Commander in Vietnam, and was awarded the Bronze Star for his service.  Colonel Epstein is a member of both the Mt. Soledad Memorial Association Board of Trustees and the Jewish War Veterans of the United States of America.
  • Retired U.S. Army First Lieutenant Kilma S. Lattin is a federally recognized member of the Pala Band of Mission Indians who served with the Army Air Cavalry from 2003-2006 and advocates for tribal veterans affairs.  He was awarded the Soldier’s Medal of Valor for his exemplary service.
  • Retired U.S. Air Force Captain Victoria A. Nenner served in the Nurse Corps in Japan during the Vietnam War.  Her late husband Paul Nenner also served in the U.S. Air force as a Military Intelligence Analyst. 

Plaques at the Mt. Soledad Veteran’s Memorial commemorate all three veterans listed in the amicus brief. They contest that the cross does not “make adherence to religion relevant in any way to their standing in the political community,” or denote a government preference for religion.

Brief #3 – Don’t Threaten Veterans Memorials Across America
Submitted by:
The American Legion

The American Legion is the nation’s largest veterans service organization, representing approximately 2.1 million members throughout the United States and abroad.  In their amicus brief written on behalf of the MSMA, The American Legion pleads that the destruction of the Mt. Soledad Veterans Memorial Cross would “threaten the continued survival of other veterans memorials—many built and maintained by members of The American Legion.”

Brief #4 – Religious Freedom Protects the Memorial
Submitted by:
U.S. Justice Foundation, Public Advocate of the United States, The Lincoln Institute for Research and Education, The Abraham Lincoln Foundation for Public Policy Research, Inc., Institute on the Constitution, Conservative Legal Defense and Education Fund.

The public policy organizations in this brief argued that prior decisions on this case have been overruled by the recent U.S. Supreme Court decision in Town of Greece v. Galloway, a case in which Liberty Institute filed an amicus brief of its own.  The recent decision makes moot the Court’s traditional “Lemon Test” for endorsement of religion, our allies say in their brief, and thus any court’s prior decision against the Mt. Soledad Veterans Memorial “has been totally discredited.”

Brief #5 – The Courts Lack Legal Authority to Attack the Memorial
Submitted by:
Rep. Duncan D. Hunter (R-CA), Pacific Justice Institute, Freedom of Conscience Defense Fund, and Individual Rights Foundation.

Congressman Duncan D. Hunter has been a member of the House of Representatives for California’s 52nd and then 50th districts since 2009.  He is the first Congressman to have served as a combat veteran from either the Iraq War or War in Afghanistan—he served in both.  Joining Representative Hunter are:

  • The Pacific Justice Institute (a California religious liberties organization),
  • The Freedom of Conscience Defense Fund (a trial-level legal defense group focused on protecting religious freedom), and
  • The Individual Rights Foundation (the legal arm of the David Horowitz Freedom Center).

Representative Hunter and these three groups say that the courts lack standing to prosecute this case.


Our partners in the fight for religious freedom are an absolutely essential component of the battle.  Cases like Mt. Soledad would not advance this far in litigation without strategic, nationally influential friends who choose to stand up and speak out in defense of religious liberty.

Likewise, our friends who support Liberty Institute through their prayers and finances play a critical role in fighting for the principles our nation was founded upon.  Your financial support makes possible the continued work that we do in defense of our constitutional right to religious freedom.

So to all of our friends, we thank you!

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About Liberty Institute
Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit

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