The petition for certiorari in Trunk v. City of San Diego is here. The case involves the public display of a large cross, first erected in 1913 and replaced several times, atop a large hill called Mt. Soledad in La Jolla, California. The latest cross was erected in 1954 and dedicated by the Mt. Soledad Memorial Association “as a memorial to American service members and a tribute to God’s ‘promise of everlasting life.'” A well-crafted and highly particularistic opinion of a panel of the Ninth Circuit (McKeown, J.) held that the cross violated the Constitution, but its language tried mightily to negotiate around some fairly contrary expressions in Justice Kennedy’s opinion for the plurality in Salazar v. Buono. Judges Bea, O’Scannlain, Tallman, Callahan, and Ikuta dissented from the denial of en banc review. In his dissenting opinion, Judge Bea noted the key language from Justice Kennedy’s Buono opinion:
[T]he District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.