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.
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.