Before the City Council of San Diego Regular Council Meeting of Tuesday, May 23, 2006

Jay Alan Sekulow, J.D., Ph.D. Chief Counsel Before the City Council of San Diego Regular Council Meeting of Tuesday, May 23, 2006 AMERICAN CENTER FOR LAW AND JUSTICE S MEMORANDUM OF LAW IN SUPPORT OF A RESOLUTION TO DIRECT THE CITY ATTORNEY TO FILE AN APPEAL AND SEEK A STAY IN PAULSON V. CITY OF SAN DIEGO (ITEM-331) Introduction The American Center for Law and Justice (ACLJ) strongly supports the adoption of the resolution proposed on Item-331 of the meeting agenda which would direct the City Attorney to file an appeal and seek a stay in Paulson v. City of San Diego. The ACLJ firmly believes that Judge Thompson s order requiring the removal of the Mount Soledad cross from the City s property is unsupported by existing law, including the earlier decisions of the United States Court of Appeals for the Ninth Circuit in this case. While the idea that a public war memorial which includes a cross somehow violates the Constitution is incredible, it is even more bizarre to suggest that the Constitution prevents the government from selling the land to a group of citizens and requires that the cross actually be removed. The ACLJ offers its legal resources and expertise in this area of law to assist the City in the defense of this case. The ACLJ is a public interest law and educational group specializing in litigation that protects religious freedom and the expression of religious sentiments in the public arena. We 1

have defended religious liberty before numerous courts across the country, including the Supreme Court of the United States. Jay Sekulow, Chief Counsel for the American Center for Law and Justice, has argued before the Supreme Court in several significant cases in this area, including Locke v. Davey, 540 U.S. 712 (2004); McConnell v. FEC, 540 U.S. 93 (2003); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000); Lamb's Chapel v. Center Moriches School District, 508 U.S. 384 (1993); and Westside Board of Education v. Mergens, 496 U.S. 226 (1990). The ACLJ has also submitted amicus curiae briefs in numerous Supreme Court cases, including Good News Club v. Milford Central School District, 533 U.S. 98 (2001); Rosenberger v. Rectors & Visitors of the University of Virginia, 515 U.S. 819 (1995); and Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995). In our view, this litigation provides yet another example of a relentless and all-pervasive attempt to exclude religion from every aspect of public life [that is] inconsistent with the Constitution. 1 I. Neither the United States Constitution Nor the California Constitution Requires All Vestiges of Religion to be Removed From Public Life. The Establishment Clause of the First Amendment does not forbid the existence of all symbols with any religious or perceived religious significance from the public arena. Our nation has a long, rich tradition of acknowledgment of the religious heritage of our people in various aspects of public life. As the Supreme Court of the United States has noted, [o]ur history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders. 2 The context of any governmental acknowledgment of Americans religious beliefs is very important, and the message of a cross at a war memorial is certainly one of respect and honor rather than the proselytization of a particular religious view. Any reasonable observer would see the Mount 1 See Lee v. Weisman, 505 U.S. 577, 598 (1992). 2 Lynch v. Donnelly, 465 U.S. 668, 675 (1984). 2

Soledad Cross as a common sense, patriotic memorial to those who fought and died in World Wars I and II, and the Korean War, not as a governmental endorsement of religion. Given America s rich religious heritage, it is not surprising that our war memorials often contain crosses and other symbols with religious significance. More than a century ago, the Supreme Court declared that this is a religious nation. 3 The constitutional protection of the ability to exercise one s own religion has never been read to require the exclusion of all religious expression from the public arena: When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. 4 In other words, the legal protection of the right to hold differing religious views, or to hold no religious beliefs at all, does not contradict the historical fact that religion has been closely identified with our history and government. 5 Public acknowledgment of the importance of religious belief to Americans predates the Constitution itself. Beginning in 1774, a paid chaplain opened the sessions of the Continental Congress with a prayer. 6 The celebration of Thanksgiving as a religious holiday dates back to colonial times, and Christmas and Thanksgiving have long been official holidays. 7 The Supreme Court has explained that [t]here is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789. 8 George 3 Church of the Holy Trinity v. United States, 143 U.S. 457, 470 (1892). 4 Zorach v. Clauson, 343 U.S. 306, 313-14 (1952) (emphasis added). 5 Abington Sch. Dist. v. Schempp, 374 U.S. 203, 212 (1963). 6 Marsh v. Chambers, 463 U.S. 783, 787 (1983). 7 Lynch, 465 U.S. at 675-76. 8 Lynch, 465 U.S. at 674. 3

Washington quoted from and kissed a Bible during his first Inauguration in 1789. 9 In the same week that the First Congress approved the First Amendment as a part of the Bill of Rights, it asked President Washington to proclaim a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God and authorized salaries for House and Senate Chaplains. 10 At the direction of Congress, Presidents have often proclaimed a National Day of Prayer. 11 There is a designated prayer room in the Capitol building for use by members of Congress and their staff, 12 and publicly funded art galleries often display paintings inspired by religion. 13 Moreover, sessions of the Supreme Court begin with the invocation, God save the United States and this Honorable Court, 14 and Moses and the Ten Commandments appear in the Court s oral argument chamber. 15 This history is relevant to the Mount Soledad Cross because historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to [their actions]... their actions reveal their intent. 16 The Mount Soledad Cross must be viewed in light of the fact that American military history is deeply interwoven with religious traditions. The Declaration of Independence was drafted after fighting had already broken out between British soldiers and American colonists. Those who signed the Declaration believed that nature s God has given every person certain basic rights that cannot be taken away by government. The Declaration proclaimed the separate and equal station to which the laws of nature and of nature s God entitle all people and held that 9 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 26-27 (2004) (Rehnquist, C.J., concurring); see also County of Allegheny v. ACLU, 492 U.S. 573, 671 (1989) (Kennedy, J., dissenting in part). 10 County of Allegheny, 492 U.S. at 674-75, n.2. 11 Lynch, 465 U.S. at 677. 12 County of Allegheny, 492 U.S. at 672. 13 Lynch, 465 U.S. at 676-77. 14 Marsh, 463 U.S. at 787. 15 Lynch, 465 U.S. at 677. 16 Marsh, 463 U.S. at 790. 4

it is self-evident that all men are created equal [and] are endowed by their Creator with certain unalienable rights. Given the very real threat of harm posed by their commitment to the American war effort, the signers of the Declaration concluded with an appeal to the Supreme Judge of the world for the rectitude of our intentions and a statement of firm reliance on the protection of Divine Providence. The Declaration provides just one example of the fact that [w]e are a religious people whose institutions presuppose a Supreme Being. 17 Religious references of historic importance did not end with the Revolutionary War. Use of the slogan In God We Trust dates back to the War of 1812. In September 1814, fearing for the fate of his country while watching the British bombardment of Fort McHenry in Baltimore, American Francis Scott Key composed the poem the Star Spangled Banner. The last verse of the poem which is now our national anthem states: Then conquer we must, when our cause it is just, And this be our motto: In God is our trust. 18 During the Civil War, President Abraham Lincoln s Gettysburg Address of 1863 proclaimed that this nation, under God, shall have a new birth of freedom. 19 The national motto, In God We Trust first appeared on coins the following year. 20 The Battle Hymn of the Republic popularized during the Civil War is replete with references to the Lord, God, and even Christ. World War II General (and future President) Dwight D. Eisenhower famously ended his 1944 D-Day order to the Allied forces by stating, Good Luck! And let us all beseech the blessings of Almighty God upon this great and noble undertaking. 21 17 Zorach, 343 U.S. at 313. 18 Congress codified the longstanding motto in 1956. House Report No. 84-1959, 1956 Cong. & Admin. News, p. 3720. 19 Elk Grove Unified Sch. Dist., 542 U.S. at 28 (Rehnquist, C.J., concurring). 20 Id.; see also Elk Grove Unified Sch. Dist., 542 U.S. at 29 (Rehnquist, C.J., concurring). 21 Id. at 29. 5

Crosses and other symbols with religious significance at war memorials must be viewed in the context of governmental recognition of religious belief that has existed throughout American history. The Mount Soledad Cross is merely another example of how religious reference can have a proper place in American military tradition. As a memorial dedicated to those who participated in three of the major wars of the 20th Century, the Cross is designed to espouse remembrance for those who served this country, not devotion to a particular religion. Crosses are commonly used as war memorials, as evidenced by the Argonne Cross, Canadian Cross of Sacrifice, Chaplains Hill, and Spanish-American War Nurses memorials located in Arlington National Cemetery. 22 A reasonable observer does not focus on any religious undertones but feels the commemorative impact of the memorial. As Justice Goldberg stated in Abington Township v. Schempp: The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow. 23 The Mount Soledad Cross is not a threat implicating government endorsement of religion, but one of many patriotic displays throughout the United States including religious aspects. In light of the long history of religious influence in American military and political life, the Supreme Court of the United States has consistently held that the display of religious symbols on public property does not, in and of itself, violate the Establishment Clause. Rather, the Court has long held that context is pivotal in deciding whether the display of religious symbols on government property is unconstitutional. In two recent decisions dealing with 22 http://www.arlingtoncemetery.org/visitor_information/monuments.html (accessed May 22, 2006). 23 Schempp, 374 U.S. at 308 (Goldberg, J., concurring). 6

displays of the Ten Commandment on public property, the Court ruled that one display violated the Establishment Clause 24 while the other did not. 25 The only meaningful difference between these two displays were their history and context. Similarly, the message conveyed by a cross located at a war memorial one of honor, appreciation, and respect is starkly different from the message of one located elsewhere. The Van Orden case provided a recent example of the Court s holding that religious symbols with a legitimate secular purpose are permitted on public property. While the Court acknowledged that the Ten Commandments are religious they were so viewed at their inception and so remain, it also found that the Ten Commandments have an undeniable historical meaning. 26 In the Court s view, [s]imply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause. 27 The Van Orden display did not violate the Establishment Clause because Texas has treated her Capitol grounds monuments as representing the several strands in the State s political and legal history. The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government. 28 The Court found that displaying a religious symbol does not necessarily violate the Establishment Clause, but rather it was the context and history of the display that determined its constitutionality. Van Orden is consistent with earlier cases holding that the context of a holiday display which contains religious symbols determines its constitutionality. 29 24 McCreary County v. ACLU, 125 S. Ct. 2722 (2005). 25 Van Orden v. Perry, 125 S. Ct. 2854 (2005). 26 Van Orden, 125 S. Ct. at 2863 (plurality). 27 Id. 28 Id. at 2864. 29 See County of Allegheny, 492 U.S. at 672; Lynch, 465 U.S. at 668. 7

The Supreme Court s reliance on the context of public religious symbols stands in stark contrast to the misused concept of a wall of separation of church and state often relied upon by those who seek to have all forms of religious expression removed from the public arena. The United States Court of Appeals for the Sixth Circuit recently issued a stinging rebuke of the American Civil Liberties Union s repeated reference to that phrase, stating: [t]his extraconstitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state. 30 Importantly, a reasonable observer would not conclude that a cross at a war memorial endorses religion because [s]imply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause. 31 This reasonable observer would recognize the patriotic and other non-religious messages conveyed by a cross at a war memorial because the reasonable person is not a hypersensitive plaintiff. Instead, he appreciates the role religion has played in our governmental institutions, and finds it historically appropriate and traditionally acceptable for a state to include religious influences... in honoring American legal traditions. 32 Cases of the United States Court of Appeals for the Ninth Circuit have also used context as a major factor in considering the constitutionality of religious symbols on public property. For example, in Separation of Church & State Comm. v. City of Eugene, the Ninth Circuit held that a cross on public property was unconstitutional because it had been originally erected for religious purposes. 33 Although the City later tried to save the cross by proclaiming it to be a war memorial, the court considered the context and history of the cross and ultimately concluded that it created an endorsement of Christianity in these circumstances. In this regard, the decision was 30 ACLU of Kentucky v. Mercer County, 432 F.3d 624, 638-39 (6th Cir. 2005). 31 See id. at 639 (quoting Perry, 125 S. Ct. at 2863 (plurality opinion)). 32 Id. at 639-40 (citation omitted). 33 See Separation of Church & State Comm. v. City of Eugene, 93 F.3d 617, 618 (9th Cir. 1996). 8

similar to the Supreme Court s holding in McCreary County that a Ten Commandments display which originally stood by itself could not be saved by merely adding other documents to it to create a more diverse display. Given the importance of context, the result in City of Eugene and McCreary County may very well have been different had the religious symbols originally been part of a war memorial or historical documents display rather than by themselves. Similarly, because the cross on Mt. Soledad was originally erected as a war memorial, and not solely for a religious purpose, it should certainly be viewed more like the Ten Commandments monument upheld in Van Orden and less like the display invalidated in McCreary County. The Mount Soledad Cross violates neither the federal nor the California Constitution. 34 II. The District Court s Order Was Improper Because the Ninth Circuit Court s Opinion in This Case Did Not Mandate the Mount Soledad Cross s Removal and the Sale of Property is a Viable Way to Resolve Constitutional Problems. Given that religious symbols have a place in American public life, especially at a war memorial to honor those who have served our country with great distinction, the removal of such symbols when legal issues are raised should be a last resort. Even where, as here, a court determines that a particular symbol with religious aspects poses constitutional difficulties, the removal of the symbol is not the only possible means of resolving the issue. The City has a solid chance of winning this case on appeal because the Ninth Circuit Court s previous decision did 34 California s Establishment Clause, located in Article I, Section 4 of the California Constitution, has generally been interpreted to mirror the federal Establishment Clause. E. Bay Asian Local Dev. Corp. v. Cal., 24 Cal. 4th 693, 718-719 (Cal. 2000). While the no preference clause of Article I, Section 4 is not dependent on the meaning of any provision of the federal Constitution, Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 560-561 (Cal. 2004) (citation omitted), the California Supreme Court has not given any clear interpretation as to its meaning. It appears that if a governmental act passes the Supreme Court of the United States Lemon test that it would also pass muster under the no preference clause. See E. Bay Asian Local Dev. Corp., 24 Cal. 4th at 719 ( Having concluded above that an exemption from a landmark preservation law satisfies all prongs of the Lemon test, it follows that the exemption is neither a governmental preference for or discrimination against religion. ). In any event, the Mount Soledad Cross is merely the kind of governmental accommodation of religion or religious belief in general permitted by the no-preference clause. Id. at 720. 9

not require that the Mount Soledad Cross be removed. 35 Although the Ninth Circuit determined that the City s sale of the memorial and surrounding property to the Mt. Soledad Memorial Association was improper, the court did not instruct the parties or the lower court to remove the Cross. Rather, the Ninth Circuit stated, [n]o doubt there are several possible ways to cure this violation, and [left] it to the parties and to the district court, in the first instance, to devise a remedy for the constitutional violation. 36 The District Court s decision to order that the Cross be removed was improper because it was the most drastic remedy available and was not mandated by the Ninth Circuit s opinion. The sale of government property to a private buyer is often used as a means to remedy a constitutional violation associated with a religious symbol located on the property. 37 Even when the facts of a particular case lead a court to conclude that a proposed sale is problematic, removal of the symbol is not the only option. As the United States Court of Appeals for the Seventh Circuit has explained, [r]emoval is always an option, but... it is not a necessary solution to a First Amendment challenge. 38 The Court added, in most cases, a government can remedy a potential Establishment Clause violation by selling the real property where the religious monument sits. 39 [A]bsent unusual circumstances, a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion. 40 This is because there is a dramatic difference in treatment of private religious expression and government religious expression. 41 The continued display of the religious symbol is not typically unconstitutional after the sale because the government has severed its ties to any religious speech and private 35 Paulson v. City of San Diego, 294 F.3d 1124 (9th Cir. 2002). 36 Id. at 1134. 37 See, e.g., Freedom from Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487 (7th Cir. 2000) (holding that a sale of real property is an effective way for a public body to end its perceived endorsement of religion). 38 Mercier v. Fraternal Order of Eagles, 395 F.3d 693, 702 (7th Cir. 2005). 39 Id. at 705. 40 Marshfield, 203 F.3d at 491. 41 Id. 10

religious speech is protected by the First Amendment and similar state constitutional provisions. 42 In light of these cases, the Ninth Circuit s holding that the City s sale of the Cross to the Association demonstrated an intent to advance a sectarian message 43 and raised constitutional problems is puzzling. The sale was reasonable because the Association paid fair market price for the property at the first sale and was the highest bidder at the second sale. 44 In Freedom from Religion Foundation, Inc. v. City of Marshfield, the Seventh Circuit Court determined that a city s sale of property and its accompanying fifteen-foot tall white marble statue of Jesus Christ to a private buyer was constitutional. 45 The court determined that, although the city did not solicit bids for the property, [b]ecause the [buyer] paid a fair market price for the land, we need not address whether the City has granted a religious organization a gift in the form of a submarket rate sale price. 46 Furthermore, in Mercier v. Fraternal Order of Eagles, the Seventh Circuit held that the sale of property containing a monument depicting the Ten Commandments did not violate the Constitution. Again, although the city offered the property to only one buyer, this was sufficient because they paid the market rate. 47 Similarly, in Chambers v. City of Frederick, the United States District Court for the District of Maryland held that a city s sale of property containing a monument depicting the Ten Commandments was constitutional in part because the buyer paid its independently-appraised fair market value. 48 The Ninth Circuit s invalidation of the sale of the property in this case is inconsistent with these decisions. 42 See Chambers v. City of Frederick, 373 F. Supp. 2d 567, 573 (D. Md. 2005). 43 Paulson, 294 F.3d at 1133. 44 Id. at 1126, 1128. 45 Marshfield, 203 F.3d at 497 (holding sale did not violate the Establishment Clause). 46 Id. at 492. 47 Mercier, 395 F.3d at 702. 48 Chambers, 373 F. Supp. 2d at 572, 573. 11

Moreover, the City s requirement that a purchaser retain the property for use as a war memorial did not somehow make the sale unconstitutional. In Marshfield, the sale of the statue of Jesus Christ and the surrounding property did not violate the Constitution even though it contained a restrictive covenant requiring the purchasers to use the property as a public park. 49 Moreover, in Mercier, the city had offers from three separate buyers offering to move the Ten Commandments monument once the property at issue was purchased. The Seventh Circuit upheld the sale, however, even though the city chose to sell the property to a buyer who would keep the monument. 50 The Court determined that the city had a historical reason for keeping the Ten Commandments monument in place and facilitating its continuity by selling the property to the Fraternal Order of Eagles since the monument was dedicated to those who helped the city stave off a flood. 51 The Seventh Circuit reasoned: In addition, the buyer of the parcel has a long-standing and important relationship with the Monument. It was the Eagles, of course, who donated the Monument to the City in the first place and it is the Eagles who have maintained the Monument. Selling the Monument to the Eagles, rather than removing it, also makes practical sense the Eagles headquarters is, and has long been, directly across the street from the Monument. The members will also continue to carefully maintain the site. 52 Similarly, San Diego had a historical reason for selling the property and Cross as a war memorial. Just as the Ten Commandments in Mercier were dedicated to those who helped that city prevent a flood, the Cross here was dedicated to those who fought and died in World Wars I, II, and the Korean War. The Association, as original owners and dedicators of the cross, and having paid for most of its maintenance costs, was a logical purchaser. The Association has 49 Marshfield, 203 F.3d at 492-93. 50 Mercier, 395 F.3d at 702. 51 Mercier, 395 F.3d at 703. 52 Id.; See also Chambers, 373 F. Supp. 2d at 573 (stating, A reasonable observer would also understand that the FOE, as the monument s original owner and the bidder best prepared to care for the parcel of land conveyed in the sale, was a logical purchaser for the property ). 12

demonstrated it will invest the care required to keep the war memorial an enjoyable place for San Diegans. Simply because the City knew that the Association would keep the Cross did not make the sale of the property unconstitutional. Rather, the only conclusion to be drawn is that the City sought to disassociate itself with the Cross. In sum, the Ninth Circuit s holding that the sale was unconstitutional contradicts the better-reasoned holdings of other courts. Furthermore, even a sale that results in continued constitutional problems does not require removal of the religious symbol. 53 In Marshfield, the sale of a religious monument to a private association did not remedy the constitutional violation because the perception still existed that the city endorsed religious speech. 54 The Seventh Circuit Court, however, did not mandate removal of the religious symbol even though the attempt to cure the constitutional violation was unsuccessful. The Court instead stated that either the... private land owner [] must be estopped from exercising its right to free exercise and freedom of speech on its own property, or some way must be found [to remedy the existing violation]. The latter not the former is the appropriate solution. 55 In other words, even though the first proposed remedy (a sale) was unsuccessful, a second attempt to cure, not removal, is the appropriate solution. Although the Ninth Circuit Court determined in this case that San Diego s sale of the Cross and its surrounding property to a private buyer was unconstitutional, removal of the Cross is not the only way to remedy the violation. The Court determined that the sale was unlawful because its structure provided a financial incentive to maintain the cross and advance[d] a sectarian message. 56 However, the Ninth Circuit stated that there are several possible ways to 53 Marshfield, 203 F.3d at 497. 54 Id. 55 Id. 56 Paulson, 294 F.3d at 1132-33. 13

cure this violation. 57 Removal of the Cross is not necessary to comply with the Court s ruling and is clearly the most severe remedy of the several possible ways to cure, yet the District Court stated that removal was perhaps long overdue. 58 The District Court completely ignored the other possible remedies that could alleviate any remaining constitutional problems without requiring that the decades-old memorial Cross be removed. This decision was erroneous and should certainly be appealed. Conclusion The American Center for Law and Justice again respectfully urges the City of San Diego to adopt the proposed resolution to direct the City Attorney to file an appeal and seek a stay in Paulson v. City of San Diego. Both the law and public opinion are on the side of the City in this case, as neither the Constitution nor the Ninth Circuit s earlier decision require the removal of the Mount Soledad Cross. The ACLJ stands ready, willing, and able to assist the City in the legal defense of the Cross. Jay Alan Sekulow Chief Counsel AMERICAN CENTER FOR LAW & JUSTICE 57 Id. at 1134. 58 Paulson v. City of San Diego, Civ. No. 89-0820GT, at 2 (S.D. Ca. 2006). 14