A 3-judge panel of the 9th Circuit U.S. Court of Appeals unanimously held on Tuesday that the Mount Soledad Cross “primarily conveys a message of government endorsement of religion in violation of the Establishment Clause.â€
The appeals court reversed a grant of summary judgment by the U.S. District Court (S.D. Calif.) in favor of the City of San Diego/US, granted summary judgment in favor of Trunk and the Jewish War Veterans and remanded the case back to the district court for further proceedings.
Procedurally, that is correct. Now the case goes back to the district court for disposition of the case consistent with the appeals court decision. It is true that by doing this, the appeals court passed the buck for ordering the cross’s removal – but there is a sound reason for doing so. It is because the remand allows the parties and/or the district court the opportunity to fashion a remedy, including where to move the cross to.
When the 9th Circuit suggested that it might be possible to modify the memorial to pass constitutional muster, I doubt that includes retaining the 43-foot high cross on Mount Soledad – because the size of the cross was a very significant factor in the court’s decision (it could be seen from Highways 5 and 15 but the secular memorials could not).
While I generally agree in the opinion, I strongly disagree with some of the panel’s reasoning, especially that Congress had a secular purpose for acquiring the cross (perhaps the Court was trying to politely avoid a separation of powers confrontation with Congress) and Fraternal Order of Eagles-donated Ten Commandments monuments were not used as religious objects (e.g., Austin, Texas / Van Orden v. Perry (2005)) – neither reason is supported by the facts in my opinion.
(My essay at www.JMCenter.org – Supreme Scandal: How the Supreme Court Blessed the Ten Commandments – discusses the religious purpose of the Eagles Ten Commandments Program and the Court’s flawed decision in Van Orden.)
Bob Ritter / JM Center