Endorsing Religion? Obama Administration argues for Cross on Public Land (by Katrina Myers)

Katrina Myers

This post is written in conjunction with the “Religion and Law in the U.S.” course dialogue project and is directed by Grace Yia-Hei Kao.

Last week the Obama administration asked the Supreme Court to allow a 43-foot-tall cross that serves as a war memorial on public land to remain atop Mt. Soledad in San Diego.  The administration reasoned that the cross has been there since 1954 and does not endorse religion.

This request follows last year’s ruling in Trunk v. City of San Diego, in which the 9th Circuit Court of Appeals ruled 3-0 that the cross on Mt. Soledad was primarily a Christian symbol and was, therefore, unconstitutional.

Allen J. Schaben / Los Angeles Times / October 6, 2005

To arrive at their decision, the court used two constructs to guide their analysis: the Lemon test and the analysis for monuments and religious displays more recently argued in Van Orden.

The Lemon test has governed Establishment Clause claims since 1970.  The Lemon test asks whether the action or policy at issue (1) has a secular purpose, (2) has the principal effect of advancing religion, or (3) causes excessive entanglement with religion.  The Supreme Court has since collapsed the last two prongs to ask if the challenged governmental action has “the effect of endorsing religion.”  Despite much criticism, the Supreme Court has never overruled Lemon.

Later, in Van Orden v. Perry (2004) the court ruled 5-4 that the Ten Commandments monument on the grounds of the Texas state capitol building does not violate the establishment clause.  In their analysis, the plurality determined that the Lemon test was not useful for this case.  Instead, the court examined the role of God and the Ten Commandments in the nation’s founding and history, the monument’s passive use, and the monument’s “undeniable historical meaning” to determine that the display was constitutional.

The 9th Circuit Court considered these previous rulings in deciding Trunk. The court inspected the history, the religious and non-religious uses, and the sectarian and secular features of the Mount Soledad Memorial.  It also assessed the history of war memorials and the dominance of the cross.  The court concluded, “The Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause.”  The court ordered that the cross be removed from the memorial.

This ruling prompted the Obama administration to ask the Supreme Court to hear and overrule the decision by the 9th Circuit Court of Appeals.  Solicitor General, Donald B. Verrilli Jr. appealed to the high court that the government should not be required “to tear down a cross that has stood without incident for 58 years as a highly venerated memorial to the nation’s fallen service members.”

Critics argue that the cross is unquestionably a religious symbol, not a universal symbol that honors all fallen soldiers.  Importantly, as the Justices of the 9th Circuit explained, the cross has never been used to honor all American soldiers.  Rather, there are many Emblems of Belief that are used to honor fallen solders in cemeteries.  For example, Muslim soldiers can have a Crescent and Star on their headstones.  Additionally, the cross at Mt. Soledad has historically been used as a place of religious observance; because it has been used as a gathering place for Christians and a scene for Easter services, it does endorse Christianity.

Defenders argue that cross serves as symbol of sacrifice and memorial to all the nation’s fallen soldiers, regardless of their religion.  What is curious about those who defend this symbol is not why they believe that the cross should remain, but who is defending it, specifically President Obama and his administration.

Obama’s recent concern for religious symbols is important.  Remember in 2009 when Obama gave a speech at Georgetown University.  Before the speech, the White House asked Georgetown, a Catholic institution, to cover an ancient monogram that included the letters IHS (which symbolizes the name of Jesus), because it would have been noticeable directly behind the President and may have been a “distraction.”   At that time, the White House did not seem concerned that this would offend some people, which it did.  Yet, Obama’s current support for the cross (and religious activism) comes at a time when Obama and his administration have been accused of waging a “war on religion.”  Combined with the (ridiculous) still-held belief that the President is a Muslim and the rapidly approaching election season, this might explain why over his term Obama and his justice department have become, in many ways, staunch allies for religious liberty.  The political undertones of this support are palpable.  It will be interesting to see how, or if, this support will affect current attitudes towards the President.

Thus, if the Supreme Court agrees to hear this case, it will be significant for two reasons.

First, it will require that the court resolve whether religious symbols, such as crosses or depictions of the Ten Commandments, can be displayed on public land.  This will require the courts to either affirm the Lemon test (which prohibits “endorsing” religion), or overrule it in favor of a new standard, such as the one used in Van Orden (which allows religious symbols to be present if they are passive and historically symbolic). Depending on the ruling, we may have a new way of understanding the establishment clause.

Second, it will be important to see if Obama’s political influence sways the court’s decision to overturn the ruling and allow the cross to stay.  If so, the impact could provide motivation for politicians to weigh in on future court cases.

The justices will likely decide this spring if they will hear the case, now known as U.S. vs. Trunk.

Katrina Myers is a first year M.A. student at Claremont Lincoln University.

  • Valentina

    Great post Katrina! Quite fascinating especially when you remind us about covering the letters during his speech at Georgetown. It does appear President Obama is trying to appease people, in particular the conservative Christian voters. It is in fact peculiar for him to make such a bold move to fight for the cross to remain based on historical and symbolic significance, but I don’t think that is the primary motivation. I do believe this is a political move to capture the hearts and minds of the Christians who are either or on the fence about him or already deciding not to vote for him. Perhaps he is strategizing and this case in particular helps capture the attention of those who would otherwise not pay him any attention. I do think polticians should get involved and battle our first amendment issues, this is how our legal system was created to work. However, I am pleased with the 9th circuit’s desicion, and all I can say in response to the government’s claim is ‘welcome to 2012!’.

  • Theophile

    Hi Katrina,
    When the planned goddess Isis statue for the Suez canal was rejected by Egypt, it found a home under the new name Liberty, in New York. Isn’t the goddess Isis a religious symbol? Wasn’t the cross called the “cross of Jupiter” before Christ?
    As a believer this cross obsession bothers me. When Jesus said “Take up your cross and follow me”, He didn’t mean to wear one, erect one on a building, or insist one be displayed on “public land”. He meant to be prepared to die on one for the word of God, following Him. If we read Foxes book of Martyrs, the history of Christianity, we might rethink what cross “displays” on public land might lead to.

  • Grace Yia-Hei Kao

    A wonderful reflection! What I really like about your blog is that you’ve isolated some of the key legal questions (e.g., which EC test to use and how to apply it), raised the larger question about the meaning of symbols, and then tied everything into politics (e.g., the need for the Obama Administration to project a certain image). I’ll be curious to hear your reflections when we do get to various “signs” in a few weeks (e.g., Christian trees, Hanukkah menorahs, ten commandments, etc.)

  • Kile Jones

    Great post Katrina! I was actually born in La Jolla, so I feel like this case hits close to home. I wonder: do you think the cross violates the EC? Do you think the fact that the Easter Cross has been turned into a war memorial (after people filed suit) helps its constitutionality? I appreciate your comments about Obama and the irony of thinking he is issuing a “war on religion.”

  • Drew Baker

    Thanks for this post Katrina! You highlight many of the important legal and political issues at the heart of the Mount Soledad Cross controversy. One of the things you hint at in your post that I find particularly compelling, is that different groups can see a symbol (in the case the cross) as either religious or non-religious. Many of those that want to preserve the location of the cross argue (as you indicate) that it is a secular memorial, just as some have argued (as you also mention) that ten commandments displays on public lands should be constitutional because they are not primarily religious, but rather odes to American history. I think this gets at the heart of the problem with O’Conner’s endorsement test: who has the ability to determine who is a “reasonable” observer? A Christian might see the cross as a potentially secular and/or valuable historical symbol, but someone who has been persecuted under that symbol might think otherwise. I also think that these cases problematize the notion of neutrality as well – from the majoritarian perspective (in this case Christian), it is often thought that particular claims are universal, neutral and objective because so many (Christians, of course) accept those claims, they appear reasonable. Power and hegemony make many things appear to be neutral (to the majority) when ultimately they are as biased as any particular view. Consider, for instance, (although take it with a grain of salt, because I don’t want to push the comparison too far), how many white Americans believe that they are not racist because they are “race-blind” or “neutral” toward race, even while they participate in (and benefit from) racist structures and often hold implicitly (or explicitly) racist beliefs. Many Christians may think that the cross is (or at least should be) a universal symbol. This belief alone makes me feel as though most Christians probably should not be seen as “reasonable” observers when it comes to the use of Christian symbols on public lands. However, it would be difficult to get courts to accept the claim that they should evaluate the question of endorsement from a non-Christian perspective. As such, for all its problems, these thoughts lead me to reluctantly and tentatively accept the Lemon test.

  • Katie Kubitskey

    Fascinating reflection on the shift of Obama’s rhetoric now that he has been accused of a “war on religion.” I’m especially interested in your last comment about the possibility for major politicians to cause a sway in the way the Court sees particular issues. It reminds me of the controversial relationship between the executive and judicial branches that was highlighted in Hein v. Freedom From Religion Foundation. However, Valentina’s poses another side to this position, though, in saying that politicians are able to and actually should attempt to influence the court on First Amendment issues, despite the separation of powers. Very interesting!

  • Katrina

    Thanks all for the comments. Valentina: excellent points. Theophile: Thanks for the interesting points. Thanks Dr. Kao, I look forward to that classroom discussion. To answer your question Kile: I do think this cross (given the facts of the case, especially the timing of when people decided it was a “memorial”) violates the EC. I think that sometimes, as we will see in later cases, religious symbols can take on non-religious meanings, which may be permissible. Drew: You make some really interesting and important points about a “reasonable” observer. Who is the reasonable observer; is it the “reasonable” member of the majority since their views would most likely be reasonable to the most people (and is extremely problematic)? I look forward to hearing more about your thoughts on the Lemon test and rel. symbols. Katie: Thanks for sharing, I’m interested to hear more about what you think.

  • Bryan Cottle

    I don’t think I can add to much more to what has been said, coming up at the end of the week mark, but I do have a slightly different thought. Great post Katrina! It reminded me of when I was in high school in Boise Idaho. I remember we had a huge cross controversy on a piece of land called Table Rock and a man from Chicago noticed it on a trip and pushed to have it taken down. It caused a tense argument locally, but in the end (if I remember right) it was on private ground anyway so it got to stay up. Since then though, I always have wondered if it should matter more on the state level for those symbol issues than at federal, because it seemed pretty crass for a guy that but saw a cross in Idaho for the small few hours he was ever probably going to be there to bring up a suit. If local people that see it everyday brought up the suit, then I think it would have felt more legitimate to me. But that is more personal than politically correct feelings.

    But I do believe that Drew’s comment on determining the reasonable observer hits the nail on the head. That makes me think about “reasonable observance” though. If the observance of such is passive or historical than we it can be argued that it is good. But it reminds me of the slippery slope of interpreting people’s intent. How we determine intent is just as hard as how we determine thought in observance between religious and not. If the symbol does take on a specifically non-religious connotation such as “Bear your cross for your country,” then does that make it secular? However, it is an analogy brought from Christian imagery so that makes it a very sensitive issue. Great post!