government “may not promote or affiliate itself with any religious doctrine or organization . . . [or]discriminate among persons on the basis of their religious beliefs.”
Courts “pay particularly
close attention to whether the challenged governmental practice either has the purpose or effect of
at 591. Endorsement includes “conveying or attempting to convey a
message that religion or a particula
r religious belief is favored or preferred.”
. at 593.Within this general legal framework requiring that the government remain secular in itspolicies and actions, the Supreme Court has had occasion to consider cases involving religiousmonuments on public land. In doing so, the Court has
upheld the constitutionality of a crossmonument on public land.
Lower federal courts have directly addressed the constitutionality of
supposed “war memorial” cross monuments on public land
, however, and have found that theyviolate the Establishment Clause.
Trunk v. City of San Diego, 629 F. 3d 1099 (9
Please note that the jurisdiction of the Ninth Circuit Court of Appeals includes California and thatthe Trunk
therefore would be controlling for any federal court hearing a caserelated to the Pendleton Cross.
The court in Trunk
rejected the argument that a cross labeled as a “war memorial” is in fact“patriotic and nationalistic, not religious.”
A cross is
“the preeminent symbol of Christianity”
and an attempt to label it as a war memorial does not change this.
A cross is
understood . . . symbol of military service, sacrifice and death”; instead, it “carries an inherently
religious message and creates an appearance of honoring only those servicemen of that particular
at 1111-12.In addition, unlike the Pendleton Cross, the Mount Soledad cross at issue in Trunk wassurrounded by secular displays honoring military service. Even given this somewhat mitigating
context, however, the court concluded that cross memorial was “a predominantly religioussymbol”
and therefore unconstitutional.
at 1110. In passing, the court noted that “there is little
doubt that [a state] would violate the Establishment Clause if it allowed a private group to place apermanent unadorned twelve-foot cross on public property without any contextual or historical
elements that served to secularize the message conveyed by such a display.”
Even though the court did “not doubt that the [cross memorial was] intended, at least in part, to honor the sacrifices of nation‟s soldiers,” it concluded that “this intent, however, isinsufficient to render the Memorial constitutional.” A cross memorial “sends a message of religious endorsement, not simply secular memorialization.”
at 1118. This “strong message of
endorsement [of religion] and exclusion [of non-Christians] . . . suggests that the government is soconnected to a particular r
eligion that it treats that religion‟s symbolism as its own, as universal.”
at 1125. The Court concluded that “[t]his message violates the Establishment Clause.”
I understand that Camp Pendleton has attempted to distance itself from the cross by statingthat it was erected by
“private individuals acting solely in their personal capacities
Court has made clear, however, that “permanent monuments displayed on public propertytypically represent government speech”
even when such monuments are not erected by the
In fact, in the only case directly to address a cross on public land that was characterized as a war memorial, the
Supreme Court upheld the government‟s decision to transfer the property on which
the cross stood to privateownership in order to lessen Establishment Clause concerns.
Salazar v. Buono, 130 S. Ct. 1803 (2010).
American Atheists v. Duncan,