Trunk v. City of San Diego, s. 08-56415

Citation629 F.3d 1099
Decision Date04 January 2011
Docket NumberNos. 08-56436,Nos. 08-56415,s. 08-56415,s. 08-56436
PartiesSteve TRUNK, Plaintiff, and Jewish 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, and Richard 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.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
629 F.3d 1099

Steve TRUNK, Plaintiff,
and
Jewish 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,
and
Richard 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.


Nos. 08-56415, 08-56436.

United States Court of Appeals,
Ninth Circuit.


Argued Dec. 9, 2009.
Submitted Dec. 30, 2010.
Filed Jan. 4, 2011.

629 F.3d 1100

John David Blair-Loy, ACLU Foundation of San Diego and Imperial Counties, San Diego, CA; Matthew T. Jones [argued], Adam Raviv and A. Stephen Hut, Jr., Wilmer Hale LLP, Daniel Mach, American Civil Liberties Union, Washington, DC, James E. McElroy, Law Offices of James E. McElroy, Del Mar, CA, for the plaintiffs-appellants.

George Frederick Schaefer, City Attorney's Office, San Diego, CA, for defendant-appellee City of San Diego.

Kathryn E. Kovacs [argued], U.S. Department of Justice, Thomas C. Stahl, U.S. Attorney's Office, Washington, DC, for defendants-appellees United States of America and Robert M. Gates.

629 F.3d 1101

Peter D. Lepiscopo, Lepiscopo & Morrow, LLP, Sacramento, CA, for Amicus Curiae Pacific Justice Institute.

Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. Nos. 3:06-cv-01597-LAB-WMC, 3:06-cv-01728-LAB-WMC.

Before: HARRY PREGERSON, M. MARGARET McKEOWN, and RICHARD A. PAEZ, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

The forty-three foot cross ("Cross") and veterans' memorial ("Memorial") atop Mount Soledad in La Jolla, California, have generated controversy for more than twenty years. During this time, the citizens of San Diego (where La Jolla is located), the San Diego City Council, the United States Congress, and, on multiple occasions, the state and federal courts have considered its fate. Yet no resolution has emerged. Indeed, we believe that no broadly applauded resolution is possible because this case represents the difficult and intractable intersection of religion, patriotism, and the Constitution. Hard decisions can make good law, but they are not painless for good people and their concerns.

Much lore surrounds the Cross and its history. But the record is our guide and, indeed, except for how they characterize the evidence, the parties essentially agree about the history. A cross was first erected on Mount Soledad in 1913. That cross was replaced in the 1920s and then blew down in 1952. The present Cross was dedicated in 1954 "as a reminder of God's promise to man of everlasting life and of those persons who gave their lives for our freedom...." The primary objective in erecting a Cross on the site was to construct "a permanent handsome cast concrete cross," but also "to create a park worthy of this magnificent view, and worthy to be a setting for the symbol of Christianity." For most of its history, the Cross served as a site for annual Easter services. Only after the legal controversy began in the late 1980s was a plaque added designating the site as a war memorial, along with substantial physical revisions honoring veterans. It was not until the late 1990s that veterans' organizations began holding regular memorial services at the site.1

More fundamentally, this war memorial—with its imposing Cross—stands as an outlier among war memorials, even those incorporating crosses. Contrary to any popular notion, war memorials in the United States have not traditionally included or centered on the cross and, according to the parties' evidence, there is no comparable memorial on public land in which the cross holds such a pivotal and imposing stature, dwarfing by every measure the secular plaques and other symbols commemorating veterans.

The Latin cross, long acknowledged as a preeminent Christian symbol, remains, as a towering forty-three foot structure, the dominant feature of the Memorial. As we concluded the last time we considered this matter, albeit under the California Constitution, "[this] sectarian war memorial carries an inherently religious message and creates an appearance of honoring only those servicemen of that particular religion." Ellis v. City of La Mesa, 990 F.2d 1518, 1527 (9th Cir.1993). But we revisit the question in this case because the

629 F.3d 1102
Cross, originally on city land, was transferred to the federal government through a 2006 congressional initiative. This suit requires us to consider whether the Memorial, with the Cross as its defining feature, violates the First Amendment to the federal Constitution.

Simply because there is a cross or a religious symbol on public land does not mean that there is a constitutional violation. Following the Supreme Court's directive, we must consider the purpose of the legislation transferring the Cross, as well as the primary effect of the Memorial as reflected in context, history, use, physical setting, and other background. Although we conclude that Congress did not harbor a sectarian purpose in establishing the Memorial in 2006, the resolution of the primary effect of the Memorial is more nuanced and is driven by the factual record. We do not look to the sound bites proffered by both sides but instead to the extensive factual background provided in the hundreds of pages of historical documents, declarations, expert testimony, and public records. Here, a fact-intensive evaluation drives the legal judgment.

The Supreme Court's framework for evaluating monuments on public lands and for resolving Establishment Clause cases under the First Amendment leads us to conclude that the district court erred in declaring the Memorial to be primarily non-sectarian, and granting summary judgment in favor of the government and the Memorial's supporters. We are not faced with a decision about what to do with a historical, longstanding veterans memorial that happens to include a cross. Nor does this case implicate military cemeteries in the United States that include headstones with crosses and other religious symbols particular to the deceased. Instead we consider a site with a free-standing cross originally erected in 1913 that was replaced with an even larger cross in 1954, a site that did not have any physical indication that it was a memorial nor take on the patina of a veterans memorial until the 1990s, in response to the litigation. We do not discount that the Cross is a prominent landmark in San Diego. But a few scattered memorial services before the 1990s do not establish a historical war memorial landmark such as those found in Arlington Cemetery, Gettysburg, and the Vietnam Veterans Memorial in Washington, D.C. Resurrection of this Cross as a war memorial does not transform it into a secular monument.

We acknowledge the good intentions and heartfelt emotions on all sides of this dispute, and recognize the sincere anguish that will be felt regardless of whether we affirm or reverse the district court. We also acknowledge the historical role of religion in our civil society. In no way is this decision meant to undermine the importance of honoring our veterans. Indeed, there are countless ways that we can and should honor them, but without the imprimatur of state-endorsed religion. At the same time, 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.

Background

Mount Soledad is an 822-foot hill in the La Jolla community of San Diego, California, between Interstate 5 and the Pacific Ocean. There has been a Latin cross atop Mount Soledad since 1913. After the first cross was destroyed by vandals in 1923, a new cross was erected. That cross stood until it blew down in 1952. The current Cross was erected in 1954 and was dedicated as a memorial to American service members and a tribute to God's "promise

629 F.3d 1103
of everlasting life." The Cross is quite large—twenty-nine feet high and twelve feet across—stands atop a fourteen foot high base, and weighs approximately twenty-four tons. As a result, the Cross is visible from miles away and towers over the thousands of drivers who travel daily on Interstate 5 below. The Mount Soledad Memorial Association ("the Association"), the civic organization that erected the Cross, has largely paid for the Cross's maintenance, though some public funds have been expended as well. Paulson v. City of San Diego, 294 F.3d 1124, 1125 (9th Cir.2002) (en banc).

Although the Cross stood alone for most of its history, it has, since the late 1990s, become the centerpiece of a more extensive war memorial. This Memorial now features six concentric walls around the base of the Cross and approximately 2,100 black stone plaques honoring individual veterans, platoons, and groups of soldiers. Brick paving stones also honor veterans; twenty-three bollards, or posts, honor community and veterans' organizations; and an American flag flies from a large flagpole. Until the events leading up to this suit, the Memorial stood on land belonging to the City of San Diego ("the City").

The Memorial has been the subject of contentious litigation for the last two decades. In 1989, two Vietnam veterans sued the City, seeking to enjoin it from allowing the Cross to remain on city land. Murphy v. Bilbray, 782 F.Supp. 1420, 1424 (S.D.Cal.1991). Ultimately, the district court enjoined the display of the Cross—which, at the time, stood alone—as a violation of the No Preference Clause of the California Constitution.2 Id. at 1438. We affirmed the injunction in Elli...

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