Mt. Soledad Memorial
> Jewish War Veterans of the United States v. Rumsfeld - Complaint
> Press Release
> Background (in PDF format)
> Q & A
> The ACLU Defends Freedom of Religion
Is the ACLU against religion in the public square?
Absolutely not. Churches, religious institutions, individuals, and families all have the constitutionally protected right to express their religious beliefs in the public square. Religious symbols are pervasive and are constitutionally protected in the public realm. Familieshave a right to display religious symbols on their homes. Individuals and their families have the right to display religious symbols on gravestones, whether in Federal or private cemeteries. Manyother forms of religious expression in the public sphere also are constitutionallyprotected. The public airways are filled with religious messages broadcast by preachers and televangelists. Books, magazines,and newspapers are printed and distributed by commercial and religious publishersand are delivered by the U.S. Postal Service. Missionaries and street preachers share their faith door-to-door and on public sidewalks. People have the right to wear religious symbols and attire in public. The ACLU has and will continue to ensure that such constitutional rights for religious communitiesand individuals are fully protected.
The ACLU is definitely opposed, however, to putting the government in charge of deciding which religious symbols and expressions should be endorsed and financed. A cross in front of a church is perfectly fine. The same cross on a courthouselawn is unconstitutional.
One of the most frequent mischaracterizations about the ACLU is that it is opposed to religious symbols in the public square. The ACLU is opposed to government promotion, financing, and endorsing of religion in the public square, and we think most Americans probably agree.
What is a “Latin”cross, like the one on Mt. Soledad?
There are many different forms of Christian crosses. The “Latin cross” largely originated with the Roman Catholic Church. It has a long vertical pole and a shorter horizontal cross (†) and it thus differs, for example, from the equal-length Greek Orthodox Cross (+) or the other early form known as the Tau cross (T). There are several other forms of the cross that are recognized by other Christian denominations, including the Patriarchal cross (with three cross bars) and the Russian Orthodox cross (also with three cross bars but with the lowest attached at an angle). Thus the Latin cross atop Mt. Soledad is not a “generic” cross for Christianity, but one that is recognized by some, but not all, Christian denominations. In addition, many Christians do not use any form of the cross as a symbol of their religion. And, of course, non-Christianreligions and non-believers do not accept any form of the cross as symbolizingtheir beliefs.
What’s wrong with the Mt. Soledad cross?
Nothing is wrong with religious groups and individuals respecting or revering a Latin cross like the one atop Mt. Soledad. (Forthe meaning of “Latin” cross, see the question above). It is their constitutionally protected right to do so. The problem is not the cross or its visibility. The problem is that itis a government cross located on government property and that it is maintained and financed by the government. The government shouldbe respecting the religious beliefs (or non-beliefs) of all of its citizens. Bychoosing one sectarian sign, it shows unfair and unnecessary favoritism towardssome.
The Mt. Soledad Latin Cross is clearly a symbol of a particular religion, and is venerated by many because of what it represents. The Latin cross is the most widely recognized symbol of Christianity, and is associated with the passion and death of Jesus Christ. Yet many of those who support the government owning and displaying the cross feign that it is a “neutral symbol” designed to honor all of America’s war dead. They do not explain how their preferred religious symbols honor America’s veterans who do not share the same religious beliefs, and who gave their lives for their country and not for the Latin cross.
Is there anything wrong with religious symbols on gravestones in military cemeteries such as Arlington Cemetery?
Once again, absolutely not. Veterans and their families are entitled to have the individual religious beliefs of veterans recognized on headstones in military cemeteries.
There is a myth -- popular with many who have little concern for the truth -- that the ACLU opposes religious symbols on headstones. To the contrary, the ACLU’s position is that every veteran’s familyshould have the right to decide which religion or belief symbol should be placedon gravestones.
Should popular majorities decide which religious symbols are endorsed and erected on government property?
Ofcourse not. Popular majorities are the right way to decide who should win elections and whether a referendum should be approved or not. But popular majoritiesshould not decide which political opinions are protected by the First Amendmentand which may be suppressed. Nor should they decide which religious symbols the government should be promoting and which the government should suppress.
But what about the Mt. Soledad referendum in San Diego?
There were two Mt. Soledad referenda in San Diego. Supporters of the federal government seizure of the Mt. Soledad Latin cross emphasize one, but not the other. More San Diegans voted to reject the transfer of the city land under the cross to a private entity only eight months before the much-referred-to July 2005 vote, in which 76 percent approved a transfer of city land to the federal government. In November 2004, in a general election, 256,745 voters rejected a proposition to transfer the portion of land underneath the cross to the Mount Soledad Memorial Association. These votes surpass the “aye” votes in the July 2005 election by nearly 60,000. Infact, the total number of votes in July 2005 (259,498) was only slightly higherthan the total number of “no” votes in November 2004. So it is disingenuous at best for politicians and others to maintain that the vast majority of San Diegans prefer the cross to remain on government land.
Many local politicians support the Mt. Soledad Memorial
No politician wants to be seen as being against a religious symbol that is so widely revered. (Politicians in other countries do the very same thing -- except the symbols are different.) Some use it to gain political support; others are afraid of a backlash. Some obviouslythink it is a good idea.
City Attorney Michael Aguirre, quoted in The New York Times about the cross being on public land noted that the case has gone on for so long primarily because city officials have found political opportunity in defying court rulings. “It’s like San Diego doesn’t recognize the need to comply with the law as a fundamental principle,” he said. [NewYork Times, “High on a Hill Above San Diego, a Church-State Fight Plays Out,” October 1, 2005.] Ironically, despite declaring the government-sponsored memorial unconstitutional, Aguirre has joined city officials in full force in the U.S.Supreme Court appeal to keep the cross on government land.
What do local religious leaders think about the cross?
There are thousands of opinions about this. Some think of the issue more in religious terms rather than constitutional terms.
Several Christian leaders wrote a theological reflection on the Mt. Soledad issue, and concluded that “any form of Christian “dominionism” or political “exceptionalism” is precluded” by Scripture (the kenosis passage, Phil 2: 5-11), and that to “use the cross as a tool to aggress upon others or to rally people for a political end, then we have turned the symbol into its opposite and publicly distorted its meaning.”
Rabbi Scott Meltzer, of La Jolla’s Ohr Shalom Synagogue, said the Mt. Soledad issue troubles him, and that there is a lack of understanding about how dangerous it is for a government to align itself with a particular religious symbol. “It doesn’t create a friendly environment for me as a Jew and for people of other faiths,” he said. “Were our government to present or speak or teach Jewishly, I would be very troubled.
So does this mean that the Mt. Soledad cross must be destroyed?
The problem is not the religious symbol. The problemis the government getting involved and endorsing and sponsoring this symbol. Thosewho truly wish to save the Mt. Soledad cross have a perfectly constitutionalsolution, which the ACLU -- and the former litigants in the 17-year lawsuit, according to a settlement agreement reached in 2004 -- support: move the cross to a non-governmental site.
What kind of memorials for veterans would be constitutional?
There are many types of memorial that would be perfectlyconstitutional. We should aim for memorials that honor all veterans and their sacrifices (and not just those of a particular religious, political, or racial background).
A really good example is the Iwo Jima Memorial. The American flag is the symbol under which they fought and died -- not the symbol of anyof their religions.
Related Issues
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Court CaseMay 2012
Religious Liberty
Jewish War Veterans of the USA v. Hagel/Trunk v. City of San DiegoJewish War Veterans of the USA v. Hagel/Trunk v. City of San Diego
In 2013, a federal judge ruled from the bench upholding the Ninth Circuit's ruling and ordering that the cross must come down. -
Press ReleaseAug 2006
Religious Liberty
ACLU Represents Jewish War Veterans and San Diego Residents in Effort to Relocate Mt. Soledad MemorialACLU Represents Jewish War Veterans and San Diego Residents in Effort to Relocate Mt. Soledad Memorial
FOR IMMEDIATE RELEASECONTACT: media@aclu.org Lawsuit Seeks Transfer of Latin Cross to Non-Governmental Site Mt. Soledad Memorial > Jewish War Veterans of the United States v. Rumsfeld - Complaint > Press Release > Background (in PDF format) > Q & A > The ACLU Defends Freedom of Religion SAN DIEGO – The American Civil Liberties Union, the Jewish War Veterans and local residents announced today that they are suing the U.S. government and Defense Secretary Donald Rumsfeld, charging that the continued display of the Mt. Soledad Latin cross on federally owned land unlawfully entangles government with religion. “The ACLU believes that religious symbols, even prominently displayed, are an important and constitutionally protected form of religious expression in the public sphere,” said David Blair-Loy, Legal Director of the ACLU of San Diego & Imperial Counties. “There is a huge difference between families and religious communities expressing their religious beliefs and the U.S. government—using all of its power, authority, financing, and property—to promote the beliefs of one faith over all others.” The ACLU filed the lawsuit, Jewish War Veterans et al. v. Rumsfeld, after the federal government, through an Act of Congress, recently obtained title to the Mt. Soledad memorial and its surrounding property by eminent domain. The ACLU asserts that this is part of a transparent effort to evade a long series of unfavorable state and federal court decisions declaring the placement of the cross on government property unconstitutional. In legal papers, the ACLU noted that the cross on Mt. Soledad is a Latin cross that originated with the Roman Catholic Church and it does not represent all Christian denominations, let alone other religions or non-believers. Therefore, the government is not only favoring a particular religion but a sect within that denomination. “The federal acquisition of the Latin cross does nothing to cure the ongoing constitutional violation,” said Daniel Mach, a senior staff attorney with the ACLU’s Program on Freedom of Religion and Belief. “When any government entity—federal, state, or local—uses taxpayer funds to acquire and prominently display a religious symbol that is sacred to some, but not all religious believers, it disregards the rich religious diversity in our society.” The ACLU is representing three local individuals and the Washington, D.C. –based Jewish War Veterans, the oldest active national veterans service organization in the country. Part of the organization’s stated mission is to “encourage the doctrine of universal liberty, equal rights, and full justice to all men and women and to combat the powers of bigotry and darkness wherever originating and whatever the target.” Many of JWV’s members oppose government funding that promotes religion, including the funding of the federal taking and continued display of the Latin cross on Mt. Soledad as the JWV did in similar prior legislation against the government in the 1980’s. “Veterans of all faiths have served and died, and continue to serve and die in the war against terrorism, to uphold the tenets of our Constitution and keep our communities of faith safe from government interference. It is an affront to non-Christian veterans for their service to be commemorated by a cross,” said Norman Rosenshein, National Commander of the JWV. “We condemn this property transfer as an election-year attempt to circumvent previous rulings and feel confident that future judicial rulings will deem the cross to be unconstitutional.” The group’s members include individuals based in the San Diego area who regularly view the Latin cross on Mt. Soledad and who are offended by the government's communication of favoritism and endorsement of the majority faith at the expense of citizens and veterans of other faiths who died in the service of their country. Dr. Richard Smith, a named plaintiff in the case, is a San Diego physician who has lived near Mt. Soledad for nearly 40 years. Having served as a Lieutenant Commander in the Navy from 1969 – 1971, he said he welcomes the idea of a war memorial, but added: “I feel that the government’s use of a single religious symbol devalues the service and sacrifices of Americans of all religious backgrounds.” Dr. Smith is joined in the case by his wife, Mina Sagheb. Smith is Jewish and Sagheb is Muslim. Both object to the presence of the cross on public ground because they believe it undermines the contributions and sacrifices of non-Christians, especially soldiers. Also represented in the case is Judith M. Copeland, another San Diego resident concerned that the cross alienates Americans of diverse faiths. The lawsuit notes that there is an entirely satisfactory constitutional remedy that had been agreed to by all parties in 2004 — to move the cross to a non-governmental site. A Presbyterian church several hundred feet from the current site had agreed to place the cross on their property, but the San Diego mayor and city council scuttled the settlement at the last minute. The Mount Soledad cross has long served as the site for Christian religious observances. When the current cross was formally installed on Easter Sunday, 1954, it was dedicated to “Our Lord and Savior Jesus Christ.” No plaques recognizing veterans were installed until decades later, in 1992, several years after a lawsuit challenging the constitutionality of the cross was filed. Subsequent granite walls with individual veterans’ plaques, and an American flag, were not added until the year 2000. The lawsuit was filed in the United States District Court for the Southern District of California. In addition to Blair-Loy and Mach, the plaintiffs were represented by Dr. T. Jeremy Gunn, Director of the ACLU’s Program on Freedom of Religion and Belief. A Stephen Hut, Jr.; Jonathan H. Siegelbaum and Ryan P. Phair of Wilmer Cutler Pickering Hale & Dorr LLP are co-counsel in the case. The legal complaint is online at: www.aclu.org/religion/govtfunding/26522lgl20060824.html A Q&A about the controversy is online at: www.aclu.org/religion/govtfunding/26527res20060824.html A fact sheet on the history of the Mt. Soledad Latin cross is online at: www.aclu.org/religion/govtfunding/26524res20060824.html