A majority of the panel has voted to deny the petitions for rehearing. A judge of the court called for a vote on the petitions for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f). The petitions for rehearing and for rehearing en banc are DENIED.
BEA, Circuit Judge, dissenting from the denial of rehearing en banc, joined by O'SCANNLAIN, TALLMAN, CALLAHAN, and IKUTA, Circuit Judges:
Stein wrote this sentiment to express the flower's indescribable, unchangeable essence. The panel appears to have transmogrified Stein's ode to a rose into a new rule of law—"a cross is a cross is a cross." Alas, that is neither good poetry nor valid law. Unlike roses, religious symbols can have multiple meanings, just as the Ten Commandments monument did in Van Orden:
Van Orden v. Perry, 545 U.S. 677, 690, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005); see also McCreary County v. ACLU, 545 U.S. 844, 867-68, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005).
Van Orden tells us that the proper test to determine whether the government has violated the Establishment Clause by erecting or maintaining a religious symbol on public grounds depends on: (1) the government's use of the religious symbol; (2) the context in which that symbol appears; and (3) the history of the symbol while under government control, including how long it has stood unchallenged.
As to use, it is undisputed here that from the moment the federal government took title to the Mt. Soledad Memorial site in 2006, it has neither held nor permitted to be held any sort of a religious exercise there. The site has been used solely for the purpose of memorializing fallen soldiers, consistent with the Cross's "undeniable historical meaning," Van Orden at 690, 125 S.Ct. 2854, evoking the memory of fallen soldiers.
As to context, the record evidence is also undisputed that at the time the federal government bought the Mt. Soledad Memorial site, the Cross was surrounded with over 2,100 plaques commemorating veterans of various faiths or of no faith, and 23 bollards
As to history, it is again undisputed that the history of the Mt. Soledad Cross has changed as its use has changed.
For the same reason that the Ten Commandments stand today in that park in
Second, were the panel to eschew the Van Orden rule, for a test as to whether a reasonable observer, aware of all relevant circumstances, would believe the Cross constituted a government endorsement of religion, it erred by failing to recognize a triable issue of material fact: that there was conflicting evidence in the record as to whether that reasonable observer would necessarily conclude the federal government was trying to endorse religion by maintaining the Mt. Soledad Memorial Park, including the Cross at its entrance.
Establishment Clause jurisprudence does not have a nice, neat, one-test-fits-all pattern. Which test the Supreme Court applies varies depending on what fact pattern is involved. When it comes to religious symbols in the public square, the Court questions the applicability of the Lemon test:
Van Orden, 545 U.S. at 686, 125 S.Ct. 2854 (plurality op.). Notice too that the Court in Van Orden also did not choose to use the Endorsement Test from County of Allegheny v. ACLU, 492 U.S. 573, 578-79, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), to test the Ten Commandments monuments.
It is precisely because the federal government has eliminated any religious exercises at the Mt. Soledad memorial site that Van Orden applies. Although the Supreme Court did not state the factors to consider when evaluating a religious symbol on government land in one concise sentence,
First, the Court looked at the government's use of the religious symbol:
Second, the Court looked at the context in which the symbol appears:
Van Orden, 545 U.S. at 691, 125 S.Ct. 2854. On this factor, only plaques commemorating veterans and bollards commemorating secular groups have been placed around the Cross at Mt. Soledad. The Cross stands at the entrance to the memorial, next to a giant American flag, making it clear the site marks the entrance to a veterans' memorial.
None of the groups listed on either the bollards or group plaques are religious groups.
Third, the Court examined the history of the symbol while under government control, including how long it has stood unchallenged. Van Orden, 545 U.S. at 686-91, 125 S.Ct. 2854 and passim. See also McCreary County, 545 U.S. at 867-68, 125 S.Ct. 2722. There had been no court challenge to the Cross from 1913 until 1989, roughly 76 years.
Both McCreary County and Van Orden involved a monument with unquestionably Judeo-Christian religious text—the Ten Commandments. But the Court's analysis did not stop there. "[T]he question is what viewers may fairly understand to be the purpose of the display. That inquiry, of necessity, turns upon the context in which the contested object appears." McCreary County, 545 U.S. at 867-68, 125 S.Ct. 2722 (citation omitted). In McCreary County, the Ten Commandments were displayed alone in the entrance to the Kentucky courthouse; they were being used as a symbol of God's teaching and a set of rules that all should live by. Thus, the setting in Kentucky conveyed a message along the lines of, "Thou shalt follow these Judeo-Christian laws or be in violation of the laws that are enforced in this courthouse." By contrast, in Texas, that same text was displayed on one of many monuments, all of which had some historical significance. Thus, the message in Texas was more along the lines of, "Here is a text that has helped to shape our state's history and laws." The text in both cases was the same, but the setting made all the difference.
Here, we have a Cross, an unquestionably Christian symbol. In a previous case, this court held that due to its strong religious connotations, a Cross standing alone on federal land in the Mojave National Preserve—even a Cross erected as a memorial to fallen soldiers—violated the Establishment Clause. Buono v. Norton, 371 F.3d 543 (9th Cir.2004).
But Buono v. Norton does not determine this case, for two reasons. First, it was handed down a year before the Ten
Second, in its next iteration, Salazar v. Buono, ___ U.S. ___, 130 S.Ct. 1803, 176 L.Ed.2d 634 (2010), the Court did not hold the lone Cross to be such an inherently religious symbol that it violated the Establishment Clause. If the Cross were ineluctably only a religious symbol, there would have been no need for the Court's remand in Buono to the district court for it to consider whether the transfer of the land on which the Cross sat to a private party from the federal government was significant for the purposes of determining whether an Establishment Clause violation had occurred.
Writing for himself, Chief Justice Roberts and Justice Alito, Justice Kennedy
Buono, 130 S.Ct. at 1820. In his concurrence, Justice Alito also recognized that crosses have a secular significance, particularly in the military realm, and thus they do not need to be removed from the public domain simply because they are also the symbol of Christianity:
Id. at 1823 (Alito, J., concurring).
If the Mojave Desert cross standing by itself, with only a single plaque, can be understood as a memorial to fallen soldiers, then surely the Mt. Soledad Cross, surrounded by more than 2100 memorial plaques, bollards commemorating groups of veterans, and a gigantic American flag, can be viewed as a memorial as well.
History is important, in part because things change over time. The Spanish government of the day endorsed the Inquisition until the early years of the 19th Century. Would a reasonable observer therefore consider the edicts of King Ferdinand
The panel concentrated its analysis on the history of the Cross as a religious symbol. Not on how this Cross at Mt. Soledad has been used by this government, but on the cross in general. Were the panel's analysis the correct one to determine whether the challenged symbol is religious in nature, then many a Supreme Court case would have come out differently. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 687, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). In Lynch, the Court upheld a Christmas display that included a Nativity crèche, another unquestionably Christian symbol:
465 U.S. at 686, 104 S.Ct. 1355 (emphasis added). Here too, removing the Cross, which has stood on Mt. Soledad since 1913, would be an over-reaction. Similarly, in McGowan v. Maryland, the Court upheld laws that originated from one of the Ten Commandments: a prohibition of sales of merchandise on Sunday. 366 U.S. 420, 431-40, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Each of these cases involved something that was religious in nature. But none violated the Establishment Clause. Why? Because the context in which they existed and the relevant history made it clear that they had not only a religious element to them, but they also served a secular purpose.
The principal defect of the panel's decision is its concentration on facts which occurred between 1913 and 2006. The City of San Diego is no longer the owner of the property. The federal government now owns the property. Thus, the use to which the City of San Diego put the Mt. Soledad Cross from 1954 to 2006, just as the use to which the private group put the Cross from 1913 to 1954,
True, local and state governments can also violate the First Amendment, and at times in the past, they have owned the Memorial site and the Cross. But they do not own or control the site and Cross now and the only relief Plaintiffs seek is an injunction against the federal government. Were this an action for damages against private owners and the City of San Diego, perhaps we could look backward at what they did. But it isn't.
Note that in all other cases where the Court discusses the history of a monument in general, the monument in question had always been on government land. Thus, the question whether the use of a symbol when under private control was not presented. In the only case where the symbol
The panel also made a mistake when it decided that the use of the Mt. Soledad Cross at this memorial in the last five years does not make a difference. The ownership of the memorial has changed. Buono, 130 S.Ct. at 1803. The evidence on this issue is undisputed—the federal government has used this land only as a memorial to our fallen soldiers and veterans. The government has not conducted religious services at the Cross.
Further, there is no evidence here that the war memorial was an attempt by the federal government to save an otherwise solely religious symbol. The non-religious symbols put up on the Kentucky courthouse walls in McCreary County were found to be pretextual attempts to change the meaning of the symbol by the same persons who had installed the Ten Commandments in the first place. See McCreary County, 545 U.S. at 862, 125 S.Ct. 2722. The non-religious plaques and bollards installed by private parties at Mt. Soledad in 2000, however, cannot serve as evidence of pretext on the part of the federal government that had nothing to do with the placement of these objects, and indeed did not even acquire the land upon which the objects had been placed until six years later.
The history and use of the site have changed, from sunrise Easter services to use solely for secular services, primarily military ceremonies. For example, in 2004 the following ceremonies took place at the Memorial: two military reunion group gatherings, two Navy retirement ceremonies, a ceremony dedicating a bollard for the Kaneohe Klippers, and about thirteen ceremonies honoring veterans. In 2005, there were sixteen ceremonies honoring veterans, one re-enlistment ceremony, one change of command ceremony, and one military reunion group gathering. In 2006, there were two reenlistment ceremonies, one commission ceremony, two military reunion group gatherings, and about twenty-eight ceremonies honoring veterans.
There is no evidence in the record that any religious ceremonies have taken place at the Memorial since the federal government acquired the property.
Despite this evidence, the panel held that the message the Mt. Soledad Cross conveyed did not change over time. 629 F.3d at 1117. This is contrary to Supreme Court precedent, which when looking at a case involving a display of the Ten Commandments on public land, held "people `reinterpret' the meaning of these memorials as `historical interpretations' and `the society around them changes.'" Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 1137, 172 L.Ed.2d 853 (2009) (citation omitted). Pleasant Grove's language is particularly apt where, as here, the central inquiry is, "What is the present government owner expressing by its use of the Cross?" and not what a previous "creator or donor" expressed:
The evidence of the changing use from a religious symbol in 1913 to exclusively a memorial symbol before the federal government acquired the land in 2006 was particularly relevant for determining whether the federal government has violated the Establishment Clause. After all, religious symbols can and do change. St. Nicholas of Bari (270-343, A.D.), the Catholic Bishop of Myra, was famous for putting coins in the shoes of persons who left them out for him and for making anonymous gifts to children. See http://www. newadvent.org/cathen/11063b.htm; http:// en.wikipedia.org/wiki/Saint_Nicholas (both last visited August 17, 2011). Over the years, he became the model of present day Santa Claus. That he is still revered as the patron saint of repentant thieves hardly affects his jolly and beneficent image to countless children and adults.
When the opposing party fails to produce evidence on an essential element of his claim—here, that the federal government's use of the Cross was for religious purposes rather than for secular, memorial purposes—our case law is well settled that summary judgment should be granted to the movant. Lopez v. Pacific Maritime Ass'n, 636 F.3d 1197, 1201-02 (9th Cir. 2011). Here, the district court correctly granted summary judgment to the government.
If, in determining whether a reasonable observer aware of all the circumstances would conclude the Cross constituted a governmental endorsement of religion, evidence other than the use by the federal government is considered relevant, then at the very least the conflict in such evidence in our record requires that the case be remanded for trial. The panel erroneously ordered that the district court should have granted appellants's motion for summary judgment.
In its "fact intensive" analysis,
Similarly, the panel found the declaration of Professor Edward T. Linenthal, the government's expert on military history, to be merely conclusory, and summarily dismissed it as bearing no proof on the issue whether the Cross has achieved a secular, memorial meaning, quite apart from its religious meaning. See Jewish War Veterans, 629 F.3d at 1112, n. 12. But this surely is an inaccurate and somewhat unfair reading of Professor Linenthal's declaration, particularly when it is entitled to every inference in its favor as proffered by the nonmoving party in opposition to Jewish War Veterans' motion for summary judgment.
On the issue whether the Cross has acquired a secular meaning, Professor Linenthal was hardly "merely conclusory"; he cited several crosses used in American soldiers' memorials: "the Canadian Cross of Sacrifice [commemorating American fallen in Canada's forces before America's entry into World War I], the Mexico Civil War Memorial and the Argonne Cross Memorial at Arlington National Cemetery; the Irish Brigade Monument at Gettysburg National Military Park; a memorial to American servicemen who endured the Bataan Death March in World War II in Taos, New Mexico; an American Legion War Memorial in La Mesa, California; the Mojave Desert Cross in Mojave National Preserve; and the Father Junipero Serra statue (holding [a] cross) in the U.S. Capitol."
The history behind these crosses and the simple fact that a cross has been used throughout this Nation's history as a symbol of respect for veterans and fallen soldiers and their valor is significant. In Van Orden, the Court looked to the role of the Ten Commandments in our Nation's history as one deciding factor in its analysis. See 545 U.S. at 688-90, 125 S.Ct. 2854.
Just as important, the statute by which the federal government acquired ownership of the Memorial expressly states that Congress sought "to preserve a historically significant war memorial." Pub.L. 109-272 § 2(a). Congress specifically made the following findings about Mt. Soledad:
An Act to Preserve the Mt. Soledad Veterans Memorial in San Diego, California, by Providing for the Immediate Acquisition of the Memorial by the United States, Pub.L. No. 109-272, § 1, 120 Stat. 770, 770 (2006).
The legislative history also contains a letter from the leaders of this country's four largest veterans service organizations, which explains that the potential destruction of the Memorial is considered an affront to veterans. 152 Cong. Rec. H5423-24 (daily ed. July 19, 2006).
Any person acquainted with all the relevant evidence and wishing to determine whether the government meant for the Cross to have a religious or secular use would take Congress's findings into account.
When determining the issue whether a cross is traditionally a memorial symbol for the fallen servicemen, we should grant some deference to the reflection of the popular understanding of the symbol, as established by Congress. See Buono, 130 S.Ct. at 1818 (Congress has the discretion to enact "a framework and policy of accommodation for a symbol [a cross] that ... has complex meaning beyond the expression of religious views"); Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 320, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985) ("deference to congressional judgment must be afforded even though the claim is that a statute Congress has enacted" is unconstitutional).
One would think that following our long-stated rule requiring all inferences to be given in favor of the non-moving party's evidence (here, the federal government), the panel would recognize there is at least a triable issue of fact as to whether the federal government has used the site for religious purposes, whether the Cross conveys a predominantly religious or secular message given its setting, and the relevant history of the site. After all, the conflicting expert witnesses on this issue have not been cross-examined as to possible prior inconsistent statements, bias or motive. Their qualifications and demeanor have not been assessed by the trier of fact.
Removal of the Cross at this stage would pose a different Establishment
Van Orden, 545 U.S. at 704, 125 S.Ct. 2854.
Except for a brief two-year period, there has been a cross on the site since 1913. No challenge was brought to the Cross until 1989; it stood unchallenged for 76 years. This is significant because in Van Orden the Court found it "determinative" that the Ten Commandments monument had stood in the Texas park unchallenged for 40 years. Justice Breyer said this "suggest[ed] more strongly than any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significant detrimental way, to a government effort to favor a particular religious sect [or] primarily to promote religion over nonreligion." Id. Justice Breyer reasoned that the passage of 40 years suggests that visitors would simply consider the religious aspect of the display as part of "a broader moral and historical message reflective of a cultural heritage." Id.
San Diego is heavily influenced by and dependant on the Armed Forces. Situated between Camp Pendleton and Naval Base San Diego, Mt. Soledad is a memorial to the sacrifice made by many soldiers who have protected this country over the years, regardless of their religion. And it is a promise to those current soldiers, a promise that we appreciate the sacrifice they are willing to make for our freedom and that, if they pay the ultimate price, we will remember them. The Cross has stood at the entrance to this memorial for almost 100 years. It has taken on the symbolism of marking the entrance to a war memorial. We should leave it be.
Again, when determining whether a display has the impermissible effect "of communicating a message of governmental endorsement or disapproval" of religion, we "look[] through the eyes of an objective observer who is aware of the purpose, context, and history of the symbol. The objective or reasonable observer is kin to the fictitious `reasonably prudent person' of tort law.'" American Atheists, Inc. v. Davenport, 616 F.3d 1145, 1159-60 (10th Cir.2010) (citations omitted).
