SAN DIEGO–A federal appeals court unanimously ruled Tuesday that the government’s display of a 43-foot-tall Latin cross on Mt. Soledad in California violates the Establishment Clause of the Constitution. The federal display was challenged in a lawsuit by the Jewish War Veterans of the United States of America and several local residents, all of whom were represented by the American Civil Liberties Union and the ACLU of San Diego and Imperial Counties.
“We are pleased that the court recognized the fundamental principle barring the government from playing favorites with religion,” said Daniel Mach, Director of the ACLU Program on Freedom of Religion and Belief. “Unlike religious symbols on individual headstones that appropriately reflect the personal faiths of fallen American soldiers, when the government displays a giant sectarian symbol as a national war memorial, it sends a divisive message valuing the sacrifices of some service members above all others.”
The cross has long stood as a landmark on top of Mt. Soledad in La Jolla being replaced several times since the original was erected in 1913. It was dedicated at an Easter Sunday ceremony describing the monument as “a gleaming white symbol of Christianity.” The current cross was erected in 1954. In 2006, the federal government, through an act of Congress, obtained the title to the cross and its surrounding property by eminent domain, and declared the cross to be a national war memorial.
“We honor those who have served, but the Constitution does not allow the government to exclude non-Christians by endorsing a clearly religious symbol,” said David Blair-Loy, Legal Director of the ACLU of San Diego & Imperial Counties. “The court is correct to find a violation of the First Amendment.”
In its opinion, the Ninth Circuit Court of Appeals found that “in adopting the First Amendment, the Founders were prescient in recognizing that, without eschewing religion, neither can the government be seen as favoring one religion over another. The balance is subtle but fundamental to our freedom of religion.”
“We are grateful to the Ninth Circuit for its recognition that the Establishment Clause of the First Amendment affirms the contribution of diversity in American democracy without preeminence to any single religion,” said Past National Commander Robert M. Zweiman of the Jewish War Veterans of the USA, the oldest active national veterans’ service organization in the country.
Attorneys on the case include Mach of the ACLU Program on Freedom of Religion and Belief; Blair-Loy of the ACLU of San Diego & Imperial Counties; and Matthew T. Jones, Stephen Hut and Adam Raviv of Wilmer Hale LLP. Plaintiffs in a companion lawsuit challenging the display were represented by James McElroy.