Trunk v. City of San Diego
| Decision Date | 14 October 2011 |
| Docket Number | Nos. 08–56415,08–56436.,s. 08–56415 |
| Citation | 11 Cal. Daily Op. Serv. 12829,660 F.3d 1091,2011 Daily Journal D.A.R. 15243 |
| Parties | Steve TRUNK, Plaintiff,andJewish War Veterans of the United States of America, Inc.; Richard A. Smith; Mina Sagheb; Judith M. Copeland, Plaintiffs–Appellants, v. CITY OF SAN DIEGO; United States of America; Robert M. Gates, Secretary of Defense, Defendants–Appellees.Steve Trunk, Philip K. Paulson, Plaintiffs–Appellants,andRichard A. Smith; Mina Sagheb; Judith M. Copeland; Jewish War Veterans of the United States of America, Inc., Plaintiffs, v. City of San Diego; United States of America; Mount Soledad Memorial Association, Real parties in interest; Robert M. Gates, Secretary of Defense, in his official capacity, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
John David Blair–Loy, Esquire, Legal Director, ACLU Foundation of San Diego and Imperial Counties, San Diego, CA, Matthew T. Jones, Laura M. Hussain, Adam Raviv, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, Daniel Mach, ACLU–American Civil Liberties Union, Washington, DC, for Plaintiffs–Appellants.
George Frederick Schaefer, Esquire, City Attorney's Office, San Diego, CA, Joan M. Pepin, DOJ–U.S. Department of Justice, Washington, DC, Thomas C. Stahl, Chief Counsel, Office of the U.S. Attorney, San Diego, CA, for Defendants–Appellees.
D.C. Nos. 3:06–cv–01597–LAB–WMC, 3:06–cv–01728–LAB–WMC, Southern District of California, San Diego.
Before: HARRY PREGERSON, M. MARGARET McKEOWN, and RICHARD A. PAEZ, Circuit Judges.
ORDER
A majority of the panel has voted to deny the petitions for rehearing. A judge of the court called for a vote on the petitions for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f). The petitions for rehearing and for rehearing en banc are DENIED.
BEA, Circuit Judge, dissenting from the denial of rehearing en banc, joined by O'SCANNLAIN, TALLMAN, CALLAHAN, and IKUTA, Circuit Judges:
“A rose is a rose is a rose.”
—Gertrude Stein, Sacred Emily, 1913.
Stein wrote this sentiment to express the flower's indescribable, unchangeable essence. The panel appears to have transmogrified Stein's ode to a rose into a new rule of law—“a cross is a cross is a cross.” Alas, that is neither good poetry nor valid law. Unlike roses, religious symbols can have multiple meanings, just as the Ten Commandments monument did in Van Orden:
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.
Van Orden v. Perry, 545 U.S. 677, 690, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005); see also McCreary County v. ACLU, 545 U.S. 844, 867–68, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005).
Van Orden tells us that the proper test to determine whether the government has violated the Establishment Clause by erecting or maintaining a religious symbol on public grounds depends on: (1) the government's use of the religious symbol; (2) the context in which that symbol appears; and (3) the history of the symbol while under government control, including how long it has stood unchallenged.1 See McCreary County, 545 U.S. at 867–68, 125 S.Ct. 2722 (2005); Van Orden, 545 U.S. at 681, 125 S.Ct. 2854.
As to use, it is undisputed here that from the moment the federal government took title to the Mt. Soledad Memorial site in 2006, it has neither held nor permitted to be held any sort of a religious exercise there. The site has been used solely for the purpose of memorializing fallen soldiers, consistent with the Cross's “undeniable historical meaning,” Van Orden at 690, 125 S.Ct. 2854, evoking the memory of fallen soldiers.
As to context, the record evidence is also undisputed that at the time the federal government bought the Mt. Soledad Memorial site, the Cross was surrounded with over 2,100 plaques commemorating veterans of various faiths or of no faith, and 23 bollards 2 commemorating some particularly valiant units who had taken casualties and various secular community groups.
As to history, it is again undisputed that the history of the Mt. Soledad Cross has changed as its use has changed.
For the same reason that the Ten Commandments stand today in that park in Austin, Texas, the Cross should continue to stand on Mt. Soledad: a religious symbol is not always used to promote religion. Whether it promotes religion depends on the context in which the symbol is displayed, how it is used, and its history. Here, that display, use, and history are secular and require affirmance of summary judgment for the federal government.
Second, were the panel to eschew the Van Orden rule, for a test as to whether a reasonable observer, aware of all relevant circumstances, would believe the Cross constituted a government endorsement of religion, it erred by failing to recognize a triable issue of material fact: that there was conflicting evidence in the record as to whether that reasonable observer would necessarily conclude the federal government was trying to endorse religion by maintaining the Mt. Soledad Memorial Park, including the Cross at its entrance.
Establishment Clause jurisprudence does not have a nice, neat, one-test-fits-all pattern. Which test the Supreme Court applies varies depending on what fact pattern is involved. When it comes to religious symbols in the public square, the Court questions the applicability of the Lemon test: 3
Whatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence, we think it not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds. Instead, our analysis is driven both by the nature of the monument and by our Nation's history.Van Orden, 545 U.S. at 686, 125 S.Ct. 2854 (plurality op.). Notice too that the Court in Van Orden also did not choose to use the Endorsement Test from County of Allegheny v. ACLU, 492 U.S. 573, 578–79, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), to test the Ten Commandments monuments.
It is precisely because the federal government has eliminated any religious exercises at the Mt. Soledad memorial site that Van Orden applies. Although the Supreme Court did not state the factors to consider when evaluating a religious symbol on government land in one concise sentence,4 reading the entire Van Orden opinion it is clear the Court looked at three elements to determine whether the government has violated the Establishment Clause by erecting or maintaining a monument that has religious significance.
First, the Court looked at the government's use of the religious symbol:
On the one hand, the Commandments' text unquestionably has a religious message, invoking, indeed emphasizing, the Deity. On the other hand, focusing on the text of the Commandments alone cannot conclusively resolve this case. Rather, to determine the message that the text here conveys, we must examine how the text is used. And that inquiry requires us to consider the context of the display. Van Orden, 545 U.S. at 700–01, 125 S.Ct. 2854 (Breyer, J., concurring) (emphasis in original). On this factor, it is undisputed that the use of the Mt. Soledad Cross by the federal government sought to be enjoined has been exclusively secular.
Second, the Court looked at the context in which the symbol appears:
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. The circumstances surrounding the monument's placement on the capitol grounds and its physical setting provide a strong, but not conclusive, indication that the Commandments' text as used on this monument conveys a predominantly secular message.
Van Orden, 545 U.S. at 691, 125 S.Ct. 2854. On this factor, only plaques commemorating veterans and bollards commemorating secular groups have been placed around the Cross at Mt. Soledad. The Cross stands at the entrance to the memorial, next to a giant American flag, making it clear the site marks the entrance to a veterans' memorial.
None of the groups listed on either the bollards or group plaques are religious groups.
Third, the Court examined the history of the symbol while under government control, including how long it has stood unchallenged. Van Orden, 545 U.S. at 686–91, 125 S.Ct. 2854 and passim. See also McCreary County, 545 U.S. at 867–68, 125 S.Ct. 2722. There had been no court challenge to the Cross from 1913 until 1989, roughly 76 years.
Both McCreary County and Van Orden involved a monument with unquestionably Judeo–Christian religious text—the Ten Commandments. But the Court's analysis did not stop there. McCreary County, 545 U.S. at 867–68, 125 S.Ct. 2722 (citation omitted). In McCreary County, the Ten Commandments were displayed alone in the entrance to the Kentucky courthouse; they were being used as a symbol of God's teaching and a set of rules that all should live by. Thus, the setting in Kentucky conveyed a message along the lines of, “Thou shalt follow these...
To continue reading
Request your trial