Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding D.C. Nos. 3:06-cv-01597-LAB-WMC 3:06-cv-01728-LAB-WMC D.C. Nos. 3:06-cv-01597-LAB-WMC 3:06-cv-01728-LAB-WMC
The opinion of the court was delivered by: Opinion by Judge McKeown
Argued December 9, 2009 Submitted December 30, 2010 Pasadena, California
Before: Harry Pregerson, M. Margaret McKeown, and Richard A. Paez, Circuit Judges.
The forty-three foot cross ("Cross") and veterans' memorial ("Memorial") atop Mount Soledad in La Jolla, California, have generated controversy for more than twenty years. During this time, the citizens of San Diego (where La Jolla is located), the San Diego City Council, the United States Congress, and, on multiple occasions, the state and federal courts have considered its fate. Yet no resolution has emerged. Indeed, we believe that no broadly applauded resolution is possible because this case represents the difficult and intractable intersection of religion, patriotism, and the Constitution. Hard decisions can make good law, but they are not painless for good people and their concerns.
Much lore surrounds the Cross and its history. But the record is our guide and, indeed, except for how they characterize the evidence, the parties essentially agree about the history. A cross was first erected on Mount Soledad in 1913. That cross was replaced in the 1920s and then blew down in 1952. The present Cross was dedicated in 1954 "as a reminder of God's promise to man of everlasting life and of those persons who gave their lives for our freedom . . . ." The primary objective in erecting a Cross on the site was to construct "a permanent handsome cast concrete cross," but also "to create a park worthy of this magnificent view, and worthy to be a setting for the symbol of Christianity." For most of its history, the Cross served as a site for annual Easter services. Only after the legal controversy began in the late 1980s was a plaque added designating the site as a war memorial, along with substantial physical revisions honoring veterans. It was not until the late 1990s that veterans' organizations began holding regular memorial services at the site.*fn1
More fundamentally, this war memorial-with its imposing Cross-stands as an outlier among war memorials, even those incorporating crosses. Contrary to any popular notion, war memorials in the United States have not traditionally included or centered on the cross and, according to the parties' evidence, there is no comparable memorial on public land in which the cross holds such a pivotal and imposing stature, dwarfing by every measure the secular plaques and other symbols commemorating veterans.
The Latin cross, long acknowledged as a preeminent Christian symbol, remains, as a towering forty-three foot structure, the dominant feature of the Memorial. As we concluded the last time we considered this matter, albeit under the California Constitution, "[this] sectarian war memorial carries an inherently religious message and creates an appearance of honoring only those servicemen of that particular religion." Ellis v. City of La Mesa, 990 F.2d 1518, 1527 (9th Cir. 1993). But we revisit the question in this case because the Cross, originally on city land, was transferred to the federal government through a 2006 congressional initiative. This suit requires us to consider whether the Memorial, with the Cross as its defining feature, violates the First Amendment to the federal Constitution.
Simply because there is a cross or a religious symbol on public land does not mean that there is a constitutional violation. Following the Supreme Court's directive, we must consider the purpose of the legislation transferring the Cross, as well as the primary effect of the Memorial as reflected in context, history, use, physical setting, and other background. Although we conclude that Congress did not harbor a sectarian purpose in establishing the Memorial in 2006, the resolution of the primary effect of the Memorial is more nuanced and is driven by the factual record. We do not look to the sound bites proffered by both sides but instead to the extensive factual background provided in the hundreds of pages of historical documents, declarations, expert testimony, and public records. Here, a fact-intensive evaluation drives the legal judgment.
The Supreme Court's framework for evaluating monuments on public lands and for resolving Establishment Clause cases under the First Amendment leads us to conclude that the district court erred in declaring the Memorial to be primarily non-sectarian, and granting summary judgment in favor of the government and the Memorial's supporters. We are not faced with a decision about what to do with a historical, longstanding veterans memorial that happens to include a cross. Nor does this case implicate military cemeteries in the United States that include headstones with crosses and other religious symbols particular to the deceased. Instead we consider a site with a free-standing cross originally erected in 1913 that was replaced with an even larger cross in 1954, a site that did not have any physical indication that it was a memorial nor take on the patina of a veterans memorial until the 1990s, in response to the litigation. We do not discount that the Cross is a prominent landmark in San Diego. But a few scattered memorial services before the 1990s do not establish a historical war memorial landmark such as those found in Arlington Cemetery, Gettysburg, and the Vietnam Veterans Memorial in Washington, D.C. Resurrection of this Cross as a war memorial does not transform it into a secular monument.
We acknowledge the good intentions and heartfelt emotions on all sides of this dispute, and recognize the sincere anguish that will be felt regardless of whether we affirm or reverse the district court. We also acknowledge the historical role of religion in our civil society. In no way is this decision meant to undermine the importance of honoring our veterans. Indeed, there are countless ways that we can and should honor them, but without the imprimatur of state-endorsed religion. At the same time, in adopting the First Amendment, the Founders were prescient in recognizing that, without eschewing religion, neither can the government be seen as favoring one religion over another. The balance is subtle but fundamental to our freedom of religion.
Mount Soledad is an 822-foot hill in the La Jolla community of San Diego, California, between Interstate 5 and the Pacific Ocean. There has been a Latin cross atop Mount Sole-dad since 1913. After the first cross was destroyed by vandals in 1923, a new cross was erected. That cross stood until it blew down in 1952. The current Cross was erected in 1954 and was dedicated as a memorial to American service members and a tribute to God's "promise of everlasting life." The Cross is quite large-twenty-nine feet high and twelve feet across-stands atop a fourteen foot high base, and weighs approximately twenty-four tons. As a result, the Cross is visible from miles away and towers over the thousands of drivers who travel daily on Interstate 5 below. The Mount Soledad Memorial Association ("the Association"), the civic organization that erected the Cross, has largely paid for the Cross's maintenance, though some public funds have been expended as well. Paulson v. City of San Diego, 294 F.3d 1124, 1125 (9th Cir. 2002) (en banc).
Although the Cross stood alone for most of its history, it has, since the late 1990s, become the centerpiece of a more extensive war memorial. This Memorial now features six concentric walls around the base of the Cross and approximately 2,100 black stone plaques honoring individual veterans, platoons, and groups of soldiers. Brick paving stones also honor veterans; twenty-three bollards, or posts, honor community and veterans' organizations; and an American flag flies from a large flagpole. Until the events leading up to this suit, the Memorial stood on land belonging to the City of San Diego ("the City").
The Memorial has been the subject of contentious litigation for the last two decades. In 1989, two Vietnam veterans sued the City, seeking to enjoin it from allowing the Cross to remain on city land. Murphy v. Bilbray, 782 F. Supp. 1420, 1424 (S.D. Cal. 1991). Ultimately, the district court enjoined the display of the Cross-which, at the time, stood alone-as a violation of the No Preference Clause of the California Constitution.*fn2 Id. at 1438. We affirmed the injunction in Ellis, 990 F.2d at 1527-28, holding that the Cross, to the extent that it could be characterized as a memorial, was "[a] sectarian war memorial carr[ying] an inherently religious message and creat[ing] an appearance of honoring only . . . servicemen of [a] particular religion." Id. at 1527. We did not reach the issue of whether the Cross violated the federal Constitution's Establishment Clause.
In response to the injunction, the City submitted a ballot initiative known as Proposition F to authorize the sale of a twenty-two square foot parcel of land sitting directly beneath the Cross to the Association. Seventy-six percent of those voting approved the measure. In October 1994, the City sold the land to the Association without soliciting offers or proposals from any other prospective buyers. See Paulson, 294 F.3d at 1126. The district court invalidated the sale, however, holding that the City's failure to consider other prospective buyers created the appearance that the City preferred the Christian religion and that the primary purpose of the sale was to preserve the Cross. Murphy v. Bilbray, No. 90-134 GT, 1997 WL 754604, *10-11 (S.D. Cal. Sept. 18, 1997). The City responded by soliciting bids for a second land sale, ultimately selling the land to the Association in September 1998. The Association then proceeded to modify the property to incorporate elements directly honoring veterans.
After further litigation, our court, sitting en banc, held that the 1998 sale violated California's No Preference Clause because it was structured to give "a direct, immediate, and substantial financial advantage to bidders who had the sectarian purpose of preserving the cross." Paulson, 294 F.3d at 1133. Following that decision, the parties then reached a settlement that would move the Cross to a neighboring church. In July 2004, the City Council passed a resolution to compel the City to accept the settlement if voters did not approve Proposition K, which would have required a third sale of the land to the highest bidder. City voters rejected Proposition K. Soon after the failure of Proposition K, two local members of Congress, then-Representative Randy Cunningham and Representative Duncan Hunter, inserted a rider into the 2005 omnibus budget bill designating the Mount Soledad property as a national veterans' memorial and authorizing the federal government to accept its donation. Consolidated Appropriations Act, Pub. L. No. 108-447, § 116, 118 Stat. 2809, 3346-47 (codified at 16 U.S.C. § 431 note). The Thomas More Law Center,*fn3 whose West Coast Director, Charles LiMandri, was a signatory of the ballot argument in favor of Proposition K, lobbied local members of Congress to intervene. President George W. Bush signed the omnibus bill into law on December 8, 2004.
The City Council declined to donate the Mount Soledad property to the federal government.*fn4 A new organization formed by LiMandri and others launched a referendum petition to "save the Mount Soledad cross" via transfer to the federal government. The City Council rescinded its decision and submitted the donation question to the voters as Proposition
A garnered seventy-six percent of the vote, but a state trial court enjoined its implementation. See Paulson v. Abdelnour, 51 Cal. Rptr. 3d 575, 585 (Cal. Ct. App. 2006).
While the appeal of the state court injunction was pending, the federal district court issued an order directing the City to remove the Cross within ninety days or pay a daily fine of $5,000. Paulson v. City of San Diego, No. 89-0820 GT, 2006 WL 3656149, at *2 (S.D. Cal. May 3, 2006). The City appealed and sought a stay pending appeal, which our court denied. Justice Kennedy then granted the City's stay application. See San Diegans for the Mt. Soledad Nat'l War Mem'l v. Paulson, 548 U.S. 1301, 1302 (2006).
In June 2006, Representatives Hunter, Issa, and Bilbray introduced H.R. 5683 ("the Act"), which proposed to seize the Memorial by eminent domain.*fn5 The House approved the bill by a vote of 349 to 74. 152 Cong. Rec. H5434 (daily ed. July 19, 2006). The Senate approved the measure by unanimous consent.
The Act authorized the land transfer "in order to preserve a historically significant war memorial, designated the Mt. Soledad Veterans Memorial in San Diego, California, as a national memorial honoring veterans of the United States Armed Forces . . . ." Id. at H5422, § 2(a). In support of the acquisition, Congress found that the Memorial has stood as a tribute to U.S. veterans for over fifty-two years, id. § 1(1), and "now serves as a memorial to American veterans of all wars," id. § 1(2). The Act also declared that "[t]he United States has a long history and tradition of memorializing members of the Armed Forces who die in battle with a cross or other religious emblem of their faith, and a memorial cross is fully integrated as the centerpiece of the multi-faceted Mt. Soledad Veterans Memorial that is replete with secular symbols." Id. § 1(3). The Act required the Department of Defense, which has since assigned the duties to the Navy, to manage the property and enter a memorandum of understanding with the Association for the Memorial's "continued maintenance." Id. § 2(c).*fn6
The federal government took possession of the Memorial in August 2006. Pub. L. No. 109-272, § 2(a), 120 Stat. 770 (2006). That same month, Steve Trunk and Philip Paulson (now deceased) filed suit against the City and the United States in district court, alleging violations of the U.S. and California Constitutions.*fn7 Jewish War Veterans, which describes itself as "the oldest active national veterans' service in America" and as a group that "engages in extensive advocacy in support of religious liberty," also filed suit against the Secretary of Defense, complaining that the display of the Cross violated the Establishment Clause. The district court consolidated the two cases.*fn8
In 2008, the district court denied Jewish War Veterans's motion for summary judgment and granted the government's motion for summary judgment. Applying the Supreme Court's frameworks set forth in both Lemon v. Kurtzman, 403 U.S. 602 (1971), and Van Orden v. Perry, 545 U.S. 677 (2005), the district court held that Congress had acted with a secular purpose in acquiring the Memorial and that the Memorial did not have the effect of advancing religion. This appeal followed.
I. THE LEMON AND VAN ORDEN FRAMEWORKS
We review de novo the district court's decision on cross motions for summary judgment. See Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010). "We must determine, viewing the evidence in the light most favorable to . . . the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the [relevant] substantive law." Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). We have jurisdiction to review the district court's denial of the Jewish War Veterans's summary judgment motion because the district court considered cross motions for summary judgment and granted the government's motion. The district court's grant of summary judgment was a final decision, giving us jurisdiction. See Abend v. MCA, Inc., 863 F.2d 1465, 1482 n.20 (9th Cir. 1988).
 The First Amendment provides that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. As the Supreme Court has explained, the "touchstone" of Establishment Clause jurisprudence is the requirement of " 'governmental neutrality between religion and religion, and between religion and nonreligion.' " McCreary County v. ACLU, 545 U.S. 844, 860 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). However, because "neutrality" is a general principle, it "cannot possibly lay every issue to rest, or tell us what issues on the margins are substantial enough for constitutional significance." McCreary, 545 U.S. at 876; see also Van Orden, 545 U.S. at 699 (Breyer, J., concurring in the judgment) ("[W]here the Establishment Clause is at issue, tests designed to measure 'neutrality' alone are insufficient.").
In particular, we do not apply an absolute rule of neutrality because doing so would evince a hostility toward religion that the Establishment Clause forbids. Thus the Court in McCreary approvingly cited Justice Harlan's observation that " 'neutrality' . . . is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation" by the First Amendment. McCreary, 545 U.S. at 876 (quoting Sherbert v. Verner, 374 U.S. 398, 422 (1963) (Harlan, J., dissenting)); see also School Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring) (cautioning that an "untutored devotion to . . . neutrality" can lead to "a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious"). We must undertake a more nuanced analysis.
The Supreme Court has articulated two related constructs that guide our analysis: the test set forth in Lemon, which- through various twists and turns-has long governed Establishment Clause claims, and the analysis for monuments and religious displays more recently articulated in Van Orden. 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. Lemon, 403 U.S. at 612-13. In recent years, the Supreme Court essentially has collapsed these last two prongs to ask "whether the challenged governmental practice has the effect of endorsing religion." Access Fund v. U.S. Dep't of Agric., 499 F.3d 1036, 1043 (9th Cir. 2007) (reviewing cases). Although Lemon has been strongly criticized, the Supreme Court has never overruled it, and in fact applied the Lemon test to a Ten Commandments display in an opinion issued the same day as Van Orden. McCreary, 545 U.S. at 859-64; see also Card v. City of Everett, 520 F.3d 1009, 1016 (9th Cir. 2008) (discussing the Supreme Court's criticism and use of the Lemon test).
In Van Orden, the Court declined to apply Lemon to a Ten Commandments monument on the grounds of the Texas State Capitol. Addressing whether that monument violated the Establishment Clause, the plurality struggled with reconciling "the strong role played by religion and religious traditions throughout our Nation's history" with the constitutional separation of church and state. Van Orden, 545 U.S. at 683. The plurality concluded that the Lemon test was "not useful in dealing with the sort of passive monument that Texas ha[d] erected on its Capitol grounds." Id. at 686. Instead, its analysis focused on "the nature of the monument and . . . our Nation's history." Id. Taking into consideration the role of God and the Ten Commandments in the nation's founding and history, id. at 686-87, 689-90, the monument's passive use, and its "undeniable historical meaning," id. at 690, the plurality concluded that the display passed constitutional muster, id. at 692.
As we have recognized, Justice Breyer's concurrence provides the controlling opinion in Van Orden. Card, 520 F.3d at 1017-18 n.10. Justice Breyer envisioned a set of "difficult borderline cases" like the Texas Capitol monument for which there could be "no test-related substitute" Lemon or otherwise -"for the exercise of legal judgment." Van Orden, 545 U.S. at 700 (Breyer, J., concurring in the judgment). Rather than requiring the application of a test, Justice Breyer concluded, displays like the Texas monument demand a fact-intensive assessment of whether they are faithful to the underlying purposes of the Establishment Clause. See id. He explained that this flexible assessment entails a range of factors, including the monument's purpose, the perception of that purpose by viewers, the extent to which the monument's physical setting suggests the sacred, and the monument's history. See id. at 701-03. Notably, this inquiry does not dispense with the Lemon factors, but rather retains them as "useful guideposts." Id. at ...