Jewish War Veterans 9th circuit suit, decision January 2011

Link to full decision is here, with excerpts below:

[3] The purpose of Congress’s acquisition of the Memorial
was predominantly secular in nature. The Act sought “to preserve
a historically significant war memorial . . . as a national
memorial honoring veterans of the United States Armed
Forces.” Pub. L. No. 109-272, § 2(a). As the district court
noted, the statute is “not directed to the cross per se, nor does
it require the continued presence of the cross as part of the
memorial; it simply requires the Mount Soledad site be maintained
as a veterans’ memorial.

The Act’s statement of purpose likely ends the inquiry. See
Mueller, 463 U.S. at 394-95. Nevertheless, the Act is arguably
ambiguous to the extent that it seeks “to preserve a historically
significant war memorial.” Pub. L. 109-272 § 2(a)
(emphasis added). In Paulson, the case invalidating the City’s
1998 land sale to the Association, we held that only the Cross
on Mount Soledad bears historical significance. Paulson, 294
F.3d at 1132 n.5 (emphasis added). Under Paulson, the Act
could be read to aim at preserving the Cross, which would
arguably make its purpose predominantly religious.
[4] But even assuming that the Act is ambiguous, the legislative
history reflects Congress’s predominantly secular purpose
in acquiring the Memorial.  Representative Hunter, for
example, described the Cross as “not only a religious symbol,”
but also “a venerated landmark beloved by the people of
San Diego for over 50 years” and “a fitting memorial to all
persons who have served and sacrificed for our Nation as
members of the Armed Forces.” 152 Cong. Rec. H5423 (daily
ed. July 19, 2006); see also id. at H5422-02 (stating that
Mount Soledad “is without question a world-class memorial,
dedicated to all of those, regardless of race, religion[,] or
creed, who have served our armed services”).

Representative Issa similarly stated that the Memorial “was intended to do
what it does for the vast majority of San Diegans and people
who come to our fair city. It honors our war veterans for the
sacrifice they made.” Id. at H5424. According to Representative
Issa, the acquisition was “consistent with how we as
Americans have honored our war dead and those who have
given in service to our country” and advanced the “freedom
for people to observe their God as they chose fit.”
.
Representative Bilbray argued for the Act on the grounds
of religious tolerance and the memorial’s secular historical
significance. He cited the presence of “many religious symbols
on public lands” in San Diego County and argued that
“this is not about religion; it is about the tolerance of our heritage
and the memorials to those who have fought for our heritage
across the board.” Id. at H5425.

[5] Finally, although Senator Sessions introduced the Senate
bill as intended “to preserve the cross that stands at the
center of Mt. Soledad Veterans Memorial . . . that is under
attack by the ACLU,” he underlined that the Cross was “part
of a memorial that has secular monuments also.” 152 Cong.
Rec. S8364 (daily ed. July 27, 2006). Taken together, the
floor statements support the text’s demonstration of Congress’s
predominantly secular purpose in acquiring the
Memorial.
Jewish War Veterans’s arguments to the contrary do not
change our view. In particular, the evidence of the role of
Christian advocacy organizations in the Act’s passage is not
probative of Congress’s objective. Although such advocacy
can form part of the context for determining an act’s purpose,
see, e.g., Epperson, 393 U.S. at 107-09 & n.16, we must take
into account the often complex, attenuated, and mediated relationship
between advocacy and legislation. Although the
advocacy by Christian organizations may have been a contributing
factor to the Act’s drafting and passage, the record does
not establish that the sectarian goals of the advocates can be
reasonably attributed to Congress as a whole. In the end,
“what is relevant is the legislative purpose of the statute, not
the possibly religious motives of the legislators who enacted
the law.” Mergens, 496 U.S. at 249 (emphases omitted).10 In
crediting congressional purpose, we underscore, however, that
these congressional statements reflect congressional sentiment
and are not necessarily reflective of the factual record before
us. We turn to the actual record to assess the primary effect
of the Memorial.
pp18
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These prior decisions do little to establish that the
cross is a prevalent symbol to commemorate veterans. In two
of the four cases we found in which crosses were used as war
memorials, the crosses in question were only designated as
war memorials after the start of litigation. See, e.g., SCSC, 93
F.3d at 618 (relating that Latin cross designated as a war
memorial following rulings by the state courts that the cross
violated the federal and state constitutions); Greater Houston
Chapter of the ACLU v. Eckels, 589 F. Supp. 222, 225, 234-
35 (S.D. Tex. 1984) (noting that three crosses and a Star of
David were rededicated as a war memorial after litigation
commenced). In a third case, the plaintiffs similarly alleged
that the cross in question was rededicated as a memorial after
a complaint from a Jewish naval officer that the cross violated
the doctrine of separation of church and state, while the
defendants claimed the cross had always been a memorial.
Jewish War Veterans, 695 F. Supp. at 5. We could locate only
one case in which it was undisputed that the cross in question
was dedicated as a war memorial from the outset. Gonzales,
4 F.3d at 1414, 1421-23 (holding unconstitutional a crucifix
in a public park “to honor the heroic deeds of servicemen who
gave their life in battle”). In light of the multitude of war
memorials in the United States, however, these few examples
do not cast doubt on our conclusion and that of the Jewish
War Veterans’s expert, that the cross has not been a universal,
or even a common, feature of war memorials.16
pp29
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The question, then, is whether the entirety of the Mount
Soledad Memorial, when understood against the background
of its particular history and setting, projects a government endorsement of Christianity. We conclude it does. In so holding,
we do not discount the fact that the Cross was dedicated
as a war memorial, as well as a tribute to God’s promise of
“everlasting life,” when it was first erected, or that, in more
recent years, the Memorial has become a site for secular
events honoring veterans. We do not doubt that the present
Memorial is intended, at least in part, to honor the sacrifices
of our nation’s soldiers. This intent, however, is insufficient
to render the Memorial constitutional. Rather, we must
inquire into the overall effect of the Memorial, taking into
consideration its entire context, not simply those elements that
suggest a secular message. See American Atheists, 616 F.3d
at 1159 (“[A] secular purpose is merely one element of the
larger factual and historical context that we consider in order
to determine whether [the display] would have an impermissible
effect on the reasonable observer.”). In conducting this
inquiry, we learned that the Memorial has a long history of
religious use and symbolism that is inextricably intertwined
with its commemorative message. This history, combined
with the history of La Jolla and the prominence of the Cross
in the Memorial, leads us to conclude that a reasonable
observer would perceive the Memorial as projecting a message
of religious endorsement, not simply secular memorialization.
pp34
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By claiming to honor all service members with a symbol
that is intrinsically connected to a particular religion, the government
sends an implicit message “to nonadherents that they
are outsiders, not full members of the political community,
and an accompanying message to adherents that they are
insiders, favored members of the political community.
Lynch, 465 U.S. at 688 (O’Connor, J., concurring); see also
American Atheists, 616 F.3d at 1160-61 (“[T]he fact that all
of the fallen . . . troopers are memorialized with a Christian
symbol conveys a message that there is some connection
between [the state] and Christianity. . . .

[T]he significant size of the cross would only heighten this concern.”); Eckels, 589
F. Supp. at 235 (the primary effect of crosses and Stars of
David used as war memorials “is to give the impression that
only Christians and Jews are being honored by the country”).
This message violates the Establishment Clause.25

[23] Accordingly, after examining the entirety of the
Mount Soledad Memorial in context—having considered its
history, its religious and non-religious uses, its sectarian and
secular features, the history of war memorials and the dominance
of the Cross—we conclude that the Memorial, presently
configured and as a whole, primarily conveys a message
of government endorsement of religion that violates the
Establishment Clause.

This result does not mean that the
Memorial could not be modified to pass constitutional muster
nor does it mean that no cross can be part of this veterans’
memorial. We take no position on those issues.

We reverse the grant of summary judgment to the government
and remand for entry of summary judgment in favor of
the Jewish War Veterans and for further proceedings consistent
with this opinion.