The cross at one time placed on “Sunrise Rock” in the Mojave Desert and which formed the basis of the law suit in Salazar v. Buono is slated to be displayed again on Veteran’s Day. Originally, the cross was displayed in 1934 by World War I veterans to honor veterans of that war; it now commemorates veterans of all wars. The land swap organized by Congress some years ago, in which the property on which the cross stands was transferred to private hands (to the Veterans of Foreign Wars), was approved and the ACLU’s Establishment Clause objection seems for now to have been rejected by the district court.
The Supreme Court has denied certiorari in the Ninth Circuit’s Mt. Soledad cross case, Trunk v. City of San Diego.
Justice Alito issued a separate statement regarding the denial of cert. Note that this is not a dissent from the denial of cert., but only a “statement.” In his statement, Justice Alito makes clear that he agrees with the decision to deny cert. at this time. The reason is the posture of the case. In the Ninth Circuit decision, the panel (in an opinion by Judge McKeown) had not required that the cross be removed. Instead, it had only required that the memorial in toto be modified so as to pass constitutional muster, in conformity with the approach the court laid out. Justice Alito wrote:
Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will berequired to take, I agree with the Court’s decision to denythe petitions for certiorari. Our denial, of course, does not amount to a ruling on the merits, and the Federal Government is free to raise the same issue in a later petition following entry of final judgment.
(footnotes and citations omitted).
I have mentioned this before, but if you have not read Judge McKeown’s Trunk opinion, you’d do yourself a favor by checking it out. One can agree or disagree with the outcome (I have my own disagreements with it), but I believe it to be a model of judicial craftsmanship and method. Or…just wait for next spring to see in greater detail why I think Trunk is an elegant and methodologically appealing decision!
This morning’s Supreme Court order list does not mention the Ninth Circuit Mt. Soledad cross case. Scotusblog is reporting that it has either been relisted for this Thursday’s conference or held for further consideration at some future date. See this entry for earlier discussion. More information when it is known.
UPDATE: Lyle Denniston reports that the case is on for Thursday’s conference.
One of the cases listed as on for tomorrow’s cert. petition conference is Mt. Soledad Memorial Ass’n v. Trunk, which asks the Court to overturn a Ninth Circuit decision holding that display of a large cross as part of a war memorial violates the Establishment Clause. See Trunk v. City of San Diego, 629 F.3d 1099 (9th Cir. 2011). The opinion by Judge McKeown in that case was, in my opinion, truly exceptional — one of the finest decisions in its style of analysis on the issue of state-sponsored religious displays that I have come across — even if I have some disagreements about the holding and whether it successfully negotiates around Justice Kennedy’s plurality opinion in Salazar v. Buono.
In a somewhat unexpected move (at least to me), the Solicitor General has joined the cert. petition, making it more likely that the Court might take the case. More tomorrow.
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.