Someone please tell Judge Carlos Bea that a large Christian cross is a large Christian cross is a large Christian cross. Its religious meaning does not change when a government surrounds it with US flags – in fact, it makes government’s First Amendment violation of endorsement of religion much worse.
Judge Bea, who sits on the 9th Circuit US Court of Appeals, recently wrote a dissenting opinion to the court’s denial of a petition for rehearing en banc in Jewish War Veterans v. City of San Diego (9 Cir., Oct. 14, 2011). The refusal to review a three judge panel’s decision that the presence of a 43-feet high Christian cross on Mount Soledad constitutes a governmental endorsement of religion in violation of the prohibitions of the First Amendment means that the panel’s decision stands.
 
Mount Soledad Cross (Courtesy of Wikipedia)
Judge Bea’s argument is this. After the city lost at every point in 17 years of litigation, the federal government purchased the Mount Soledad Memorial from the City of San Diego in 2006, including its large cross. Just as the Supreme Court found in Lynch v. Donnelly, 465 U.S. 668 (1984) that government can hide a Christian nativity scene among a Santa Claus house, reindeer, candy-striped poles, colored lights, etc. to make the holiday display secular, Judge Bea seems to believe that the 43-feet high Mount Soledad cross can be hidden among any US flags and over 2,100 placques, thereby removing the religious taint.
His dissenting opinion is a perfect example of judicial activism – the use of opinions to obtain results consistent with the judge’s personal beliefs but inconsistent with the Constitution.
I strongly recommend to Judge Bea that he read the transcript (relevant portion excerpted below) of oral arguments in Salazar v. Buono, 130 S.Ct. 1803 (2010) to understand how mistaken he is to believe that a Christian cross is a universal symbol of death and remembrance. The following exchange between Justice Antonin Scalia and Peter Eliasberg of the ACLU of Southern California illustrates the point:
JUSTICE SCALIA: It’s [the Mt. Soledad cross] erected as a war memorial. Â I assume it is erected in honor of all of the war dead. It’s the — the cross is the — is the most common symbol of — of — of the resting place of the dead, and it doesn’t seem to me — what would you have them erect? Â Â A cross — some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. Â The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
(Laughter.)
MR. ELIASBERG: So it is the most common symbol to honor Christians.
JUSTICE SCALIA: I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. Â I think that’s an outrageous conclusion.
Transcript at 38-39.
The simple point is that just as Justice Scalia’s Roman Catholicism prevented him from seeing the tree (Christian cross) for the forest (his religion), Judge Bea suffers from the same myopia. While I too laughed in the courtroom that day at Justice Scalia’s ignorance, it is a very sad how out of touch he is from reality. It is also unfortunate for our country.
Coincidentally, I toured the King David Memorial Gardens in Falls Church, Virginia for some research I was doing on religious symbols. Eliasberg was correct. I found no Christian crosses on the grave markers in the Jewish cemetery. Further, neither of my parents were Christian at the time of their deaths and neither has a Christian cross on their grave stones in Arlington National Cemetery. These examples, plus the fact that the Department of Veteran Affairs has approved 48 emblems of belief is incontrovertible evidence that the Christian cross is not a universal symbol of death and remembrance. Rather, its use solely reflective of the large number of Christians in the US population.
Judge Bea cites Chief Justice Rhenquist’s plurality opinion in Van Orden v. Perry, 545 U.S. 677 (2005) to support his theory of evolution that the meaning of religious symbols can change over time and become secular. His reliance is misplaced. Aside from the fact that evolution takes substantially longer than the time it takes to transfer property, there was no majority opinion in Van Orden. The disingenuous reasoning of the five justices holding that display of the Fraternal Order of Eagles donated Ten Commandments monument on the Texas state capitol grounds did not violate the Establishment Clause is one of the worst reasoned Supreme Court cases of all time. For example,the Chief Justice wrote:
The inclusion of the Commandments monument in this group has a dual significance, partaking of both religion and government, that cannot be said to violate the Establishment Clause. …
Despite the Commandments’ religious message, an inquiry into the context in which the text of the Commandments is used demonstrates that the Commandments also convey a secular moral message about proper standards of social conduct and a message about the historic relation between those standards and the law.
Van Orden at 678-679 (2005).
The Chief Justice was absolutely wrong. Taken as a whole, there is nothing secular about the Eagles Commandments monument in Austin, Texas which boldly states in large letters: “the Ten Commandments – I AM the LORD thy God†and then lists ten or eleven commandments (depending upon how you count). The monument is purely religious and was donated by the Fraternal Order of Eagles as part of a scheme concocted by Judge E.J. Ruegemer to promote Christianity. (See my ebook Supreme Scandal: The Supreme Court Blesses the Ten Commandments (currently a work in progress.))
Judge Bea quotes Chief Justice Rhenquist’s opinion in Van Orden to support his theory of evolution:
Of course, the Ten Commandments are religious—they were so viewed at their inception and so remain. The monument, therefore, has religious significance. According to Judeo-Christian belief, the Ten Commandments were given to Moses by God on Mt. Sinai. But Moses was a lawgiver as well as a religious leader. And the Ten Commandments have an undeniable historical meaning, as the foregoing examples demonstrate. Simply having a religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.
Quoting Van Orden v. Perry, 545 U.S. 677, 690 (2005) at 18971. The last quoted sentence above of the Chief Justice’s opinion is totally bizarre given that the state of Texas uses the monument to promote Christianity especially when one considers that the Ten Commandments was primary content of the monument. Similarly, the Mount Soledad cross is the dominating feature of the Mount Soledad Memorial.
Arguing that “context†is critical and that the context is a war memorial, Judge Bea discredits the Lemon test. (At 18973-74.) In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court held that to withstand an Establishment Clause challenge to a governmental action, the act: (1) must have a secular purpose, (2) must not have the primary effect of either advancing or inhibiting religion and (3) must not result in an “excessive government entanglement” with religion. Obviously, the real problem that the Christian Right has with the Lemon test is that its use prevents them from using government to promote their religion. In Jewish War Veterans, the federal government’s (as did San Diego before it) use of a Christian cross to memorialize war dead clearly violates all three prongs of the Lemon test. Its purpose was religious. Its effect is religious. And its display entails an excessive entanglement with religion.
In summary, the federal government’s purchase of the Mount Soledad Memorial was a brazen attempt to save the cross as an element of the memorial. Having violating all three prongs of the Lemon test – three strikes – the Christian cross should be removed from Mount Soledad forthwith.
Bob Ritter / JM Center