9th Circuit Rules Against the Mt. Soledad Cross

The Mount Soledad War Memorial

The 9th Circuit has ruled that the cross-adorned World War II memorial atop Mt. Soledad violates the Establishment Clause because it may be construed as a government endorsement of religion.

This ruling demonstrates how far our judiciary has wandered from how the framing generation's understanding of the Establishment Clause. As I recently explained following the 10th Circuit's similar treatment of a Utah memorial honoring fallen state troopers, the Establishment Clause's text plainly prohibits the federal establishment of a government religion. Renowned Establishment Clause scholar Dr. John Eastman's "We are a Religious People, Whose Institutions Presuppose a Supreme Being" documents the Framers' attitudes toward the role of religion in public life, and reaches the following conclusion:

The Establishment Clause barred the federal government from providing tax support to one religious sect to the exclusion of all others, or from mandating adherence to such a nationally 'established' religion, but id did not prohibit the federal government from providing aid to religion generally, or even from issuing public non-sectarian religious proclamations.

The judiciary has, unfortunately, manipulated the Establishment Clause far beyond these limits. One critical prong of the courts' convoluted Establishment Clause inquiry is whether "it would be objectively reasonable for the government action to be construed as sending primarily a message of either endorsement or disapproval of religion." Vernon v. City of Los Angeles, 27 F. 3d 1385, 1398 (9th Cir. 1994).

The 9th Circuit used this Endorsement Test to conclude:

The use of such a distinctively Christian symbol to honor all veterans sends a strong message of endorsement and exclusion. It suggests that the government is so connected to a particular religion that it treats that religion’s symbolism as its own, as universal . . . . 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 . . . ."

Cases such as these use terms like suggest and implicit quite a bit in order to make groundless assertions that have no bearing on reality. For the record: the federal government does not treat Christian symbolism as its own, and non-Christians are, in fact, full members of the political community. I would like to think that further clarifications would prevent our judiciary from confusing potential perceptions of discrimination with the sort of concrete religious establishments the Establishment Clause is crafted to prevent.

Regardless, this and the earlier 10th Circuit holding should give the Supreme Court ample opportunity to restore its Establishment Clause jurisprudence to one that interprets it as it was written, and manages not to order the closure of benevolent World War II memorials.