The Mt. Soledad Cross: An Establishment Clause Violation

Mt. Soledad Cross, La Jolla

Living in La Jolla, I see the Mount Soledad Cross pretty much every time I get on the 5 South. The first time I saw it, I was genuinely impressed. However, once I learned more factual underpinnings about the cross, I began to question the entire situation.

Now, here at USD, and within the greater San Diego community, I’m willing to bet I’m not quite like you. Being a member of the Tribe (you know, Jewish), I feel like I should at least put this up front: I am not offended at the sight of any religious symbol, be it a cross, crescent moon, or Star of David, even if it is 29 feet tall and 12 feet wide atop one of San Diego’s highest peaks.

Still, I believe the cross is in violation of the Establishment Clause spelled out in the First Amendment. While there are many nuanced and layered aspects to this debate, I feel it is best if I use this limited space to primarily focus on the cross’s effect on the population it overlooks.

In Lemon v. Kurtzman, the United States Supreme Court put forth a test that on one prong asked 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.”1  Because the cross sits on federally owned land, it does seem a bit, well, concerning.

While it might not be obvious, the actual war memorial has only relatively recently come into existence. Back in the 1980s, a plaque was added to the cross dedicating it as a war memorial, but only after the first legal controversies began to materialize. Prior to that, it had served solely as a religious symbol since 1913. The cross in its present form was dedicated in 1954 and was partly erected “to create a park worthy of this magnificent view, and worthy to be a setting for the symbol of Christianity.”2

For those who argue that the cross stands in honor of our fallen soldiers, the quickly thrown together and seemingly reactive plan against then-forthcoming legal problems illustrates that this cross was—and still is—primarily a religious symbol.

While I do believe the cross is unconstitutional, I do not think it automatically needs to come down. It seems there are many San Diegans (and concerned non-San Diegans) who feverishly believe the cross should remain where it is. There is nothing objectionable about a group of involved citizens raising funds to buy the park from the federal government and resolving this problem by simply erasing the federal government from this equation altogether.

But as the situation currently stands, I feel that having an overt religious symbol on federal property—despite being labeled recently as a war memorial—is in clear violation of the Establishment Clause and is thus unconstitutional.

1 Vernon v. City of Los Angeles, 27 F.3d 1385, 1398 (9th Cir. 1994) (citing Lemon v. Kurtzman, 403 U.S. 602 (1971)).
2 Trunk v. City of San Diego, 629 F.3d 1099, 1101 (9th Cir. 2011).

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