Trunk v. City of San Diego
629 F.3d 1099
| 9th Cir. | 2011Background
- Mount Soledad features a 43-foot Latin cross atop a veterans memorial on public land in San Diego.
- The cross began in 1913, with the current structure erected in 1954 and later integrated into a larger memorial.
- From the 1980s onward, litigation sought removal or modification of the cross on state and federal grounds.
- Congress intervened in 2006 to transfer management to the Department of Defense and designate the site a national memorial.
- Plaintiffs sued, challenging the transfer and memorial display as violative of the Establishment Clause.
- The district court granted summary judgment for the government; the Ninth Circuit reverses and remands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Memorial's primary effect is secular or religious under Lemon/Van Orden | JW Vets argue memorial endorses religion due to the Cross's dominance. | Govenment contends secular purpose and context negate endorsement. | Memorial's primary effect is religious endorsement; violates Establishment Clause. |
| Whether Congress's purpose in acquiring the Memorial was predominantly secular | Congress aimed to preserve a Christian symbol and cross-related memory. | Legislative history shows secular memorial purpose honoring all veterans. | Congress's purpose predominantly secular. |
| Whether setting, history, and usage transform the cross into a secular war memorial | Long religious use and prominence of the Cross negate secular interpretation. | Secular elements and memorial usage dilute religious symbolism. | Setting and history do not overcome the cross's sectarian meaning. |
| Whether the Cross on public land constitutes government endorsement under Van Orden/McCreary | Cross remains central and dominates the site, signaling endorsement. | Contextual factors allow a historical display with secular overtones. | Display conveys government endorsement of religion. |
Key Cases Cited
- Lemon v. Kurtzman, 403 U.S. 602 (1971) (establishment test; secular purpose, primary effect, entanglement)
- Van Orden v. Perry, 545 U.S. 677 (2005) (contextual, history-based analysis for displays; not always Lemon)
- McCreary County v. ACLU, 545 U.S. 844 (2005) (purpose and effect analysis; neutrality not absolute)
- County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989) (holiday display with analysis of setting and message)
- Ellis v. City of La Mesa, 990 F.2d 1518 (1993) (sectarian memorial; cross constitutes religious message)
- Paulson v. City of San Diego, 294 F.3d 1124 (2002) (en banc; land sale under No Preference Clause)
- SCSC v. City of Eugene, 93 F.3d 617 (1996) (separation of church and state; cross not neutral)
- Rabun County Chamber of Commerce v. Rabun County, 698 F.2d 1098 (1983) (crosses as symbols; national landscape context)
- Card v. City of Everett, 520 F.3d 1009 (2008) (Van Orden framework applied in Ninth Circuit)