0 0 CHARLES V. BERWANGER (SBN ) GORDON AND REES 0 West Broadway, Suite 00 San Diego, CA 0 T: () -00 F: () - Email: cberwanger@gordonrees.com Attorneys for Defendant and Real Party in Interest MOUNT SOLEDAD MEMORIAL ASSOCIATION *Additional counsel listed on signature pages STEVE TRUNK and PHILIP K. PAULSON, vs. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Plaintiffs, CITY OF SAN DIEGO, UNITED STATES OF AMERICA, et al., Defendants. MOUNT SOLEDAD MEMORIAL ASSOCIATION, Real Party In Interest. JEWISH WAR VETERANS OF THE UNITED STATES OF AMERICA, INC., RICHARD A. SMITH, MINA SAGHEB AND JUDITH M. COPELAND, vs. Plaintiffs, LEON PANETTA, Secretary of Defense, in his official capacity, Defendants. Case No. :0-CV-0-LAB (WMC) MOUNT SOLEDAD MEMORIAL ASSOCIATION S RESPONSE TO PLAINTIFFS CONSOLIDATED BRIEF ADDRESSING THE APPROPRIATE REMEDY TO BE IMPOSED IN THIS MATTER RESPONSE BRIEF Case No.: 0-CV-0-LAB (WMc)
0 0 Plaintiffs ask this Court to order the demolition of a memorial cross that has stood for over 0 years in silent tribute to the patriotism and sacrifice of our Nation s veterans. Although plaintiffs now argue that drastic remedy is virtually compelled by the Ninth Circuit s decision holding that the Mount Soledad Veterans Memorial, as presently configured and as a whole, violates the Establishment Clause, Trunk v. City of San Diego, F.d 0, (th Cir. 0), plaintiffs took quite a different tack when opposing Supreme Court review of that decision insisting instead that it did not dictate a specific remedy, instead leaving that to [this Court] to determine in the first instance. Br. Opp. Cert.. Indeed, the Ninth Circuit s opinion expressly contemplates that the Memorial could be modified to pass constitutional muster and that a cross could be part of the Memorial. Trunk, F.d at. Accordingly, the position of the Mount Soledad Memorial Association is that subsequent, substantial enhancements of the Memorial including the addition of over 000 new plaques, and nearly double the number of granite memorial walls to make space for 00 more plaques remove any possible doubt that the Memorial passes constitutional muster. The Association therefore respectfully requests that the Court decline to impose plaintiffs drastic (and destructive) remedy, which would exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Van Orden v. Perry, U.S., 0 (00) (Breyer, J., concurring). Instead, the Association respectfully requests that the Court issue an order declaring that the Memorial, as presently configured and as a whole, passes constitutional muster. BACKGROUND As the Court knows, the Mount Soledad Veterans Memorial including the memorial cross has stood in San Diego for over [0] years as a tribute to the members of the United States Armed Forces who sacrificed their lives in the RESPONSE BRIEF Case No.: 0-CV-0-LAB (WMc)
0 0 defense of the United States. Pub. L. No. 0-, 0 Stat. 0, () (00). In 00, Congress designated the Memorial as a national memorial honoring veterans of the United States Armed Forces. Pub. L. No. 0-, Stat. 0, (a) (00). Then in 00, when a court order threatened to force the removal of the memorial cross, the federal government acquired the Memorial to preserve a historically significant war memorial honoring veterans of the United States Armed Forces. Pub. L. No. 0-, (a). Congress expressly found that the memorial cross is fully integrated as the centerpiece of the multi-faceted Memorial that is replete with secular symbols. Id. (). Congress also found that the patriotic and inspirational symbolism [at] the Mt. Soledad Veterans Memorial provides solace to the families and comrades of the veterans it memorializes. Id. (). When the Ninth Circuit held the Memorial unconstitutional in 00, the memorial cross was circled by six large granite walls featuring over 000 plaques honoring veterans, platoons, and groups of soldiers. Trunk, F.d at 0. Today, more than 00 plaques adorn the original granite walls, and five more walls which can hold an additional 00 plaques have been added to the Memorial. Brick paving stones commemorate non-veterans and supporters of veterans and the Memorial. Trunk, F.d at 0. Twenty-three bollards honor veterans and other community organizations. Id. More than a dozen benches each marked with a plaque dedicated to the memory of a loved one occupy the Soledad Natural Park grounds where the Memorial is located. The benches face the panorama, not the memorial cross. A large American flag flies atop a 0-foot flagpole a foot higher than the memorial cross itself. Id. The Memorial stood for years without legal challenge or community dissension until one of the original plaintiffs in this case sought to enjoin the City of RESPONSE BRIEF Case No.: 0-CV-0-LAB (WMc)
0 0 San Diego from displaying the memorial cross. Id. The district court granted the injunction, concluding that the display violated the California Constitution. Id. In 00, the district court ordered the City to comply with the injunction and the Ninth Circuit denied a stay pending appeal. Id. at 0. The City petitioned Justice Kennedy, as Circuit Justice, to grant the stay, which he did. San Diegans for the Mt. Soledad Nat l War Mem l v. Paulson, U.S. 0, 0 (00) (Kennedy, Cir. J.). Soon after, three members of the House of Representatives introduced a bill to acquire the Memorial. Trunk, F.d at 0. After Congress acquired the Memorial, plaintiffs filed this lawsuit. Id. at 0. On summary judgment, this Court held there was no Establishment Clause violation. The Ninth Circuit reversed, but remanded the case to this Court to fashion an appropriate remedy, and specifically noted that its decision d[id] not mean that the Memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the Memorial]. Id. at. Although the Supreme Court denied certiorari, Justice Alito issued a rare statement respecting the denial, noting that the constitutionality of the Mount Soledad Veterans Memorial is a question of substantial importance. Mount Soledad Mem l Ass n v. Trunk, S. Ct., (0). Justice Alito explained that in Salazar v. Buono, 0 S. Ct. 0 (00), the Court emphasized that the goal of avoiding governmental endorsement of religion does not require eradication of all religious symbols in the public realm and that [t]he demolition of the cross at issue in [Buono] would have been interpreted by some as an arresting symbol of a Government that is not neutral but hostile on matters of religion and is bent on eliminating from all public places and symbols any trace of our country s religious heritage. Id. at (citations and alterations omitted). RESPONSE BRIEF Case No.: 0-CV-0-LAB (WMc)
0 0 Justice Alito concluded by noting that [o]ur denial [of certiorari]... does not amount to a ruling on the merits, and that the Ninth Circuit s underlying judgment on liability still may be challenged in a later petition following entry of a final judgment. Id. (citations omitted). ARGUMENT Nearly three years ago, the Ninth Circuit held that the Mount Soledad Veterans Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause. Trunk, F.d at (emphasis added). As Justice Alito has explained, the Ninth Circuit emphasized that its decision d[id] not mean that the Memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the Memorial]. Mount Soledad, S. Ct. at (quoting Trunk, F. d at ) (alterations in original). Nonetheless, plaintiffs now insist that [t]he only remedy in this case that would be consistent with the Ninth Circuit s opinion is to order the removal of the [c]ross from its current position at the center of the Memorial atop Mount Soledad. Br. (emphasis added). That is a different view than the one plaintiffs espoused in successfully opposing Supreme Court review, when they asserted that the Ninth Circuit s opinion did not dictate a specific remedy, instead leaving that to [this Court] to determine in the first instance. Br. Opp. Cert. It is a different view than the one expressed by Justice Alito in agreeing with the Supreme Court s decision to deny certiorari. Mount Soledad, S. Ct. at ( Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will be required to take, I agree with the Court s decision to deny the petitions for certiorari. (emphasis added)). And it is a different view than the one articulated by the Ninth Circuit itself, which averred that its opinion does not mean that the Memorial could not be modified to pass constitutional muster nor does it RESPONSE BRIEF Case No.: 0-CV-0-LAB (WMc)
0 0 mean that no cross can be part of this veterans memorial. Trunk, F.d at. Taking the Ninth Circuit at its word, this Court is not foreclosed from concluding that as it stands today, the Memorial is not the same Memorial that the Ninth Circuit held, as presently constituted and as a whole, id. (emphasis added), violates the Establishment Clause. The Association, by adding numerous significant and substantial indisputably secular elements to the Memorial since then, has modified the Memorial such that no additional remedy is necessary for it to pass constitutional muster. See, e.g., ACLU v. Schundler, F.d, 0 (d Cir. ) (Alito, then-j.) (holding modified display constitutional after city added secular elements and signs to original display held to violate the Establishment Clause). Plaintiffs request (at ) for an order requiring the immediate removal of the memorial cross should therefore be denied. Although at times plaintiffs nonchalantly refer to moving the memorial cross, let us be clear: what they are proposing is the permanent and drastic alteration of a longstanding and cherished war memorial that for over [0] years, Congress found, has been a tribute to members of the United States Armed Forces who sacrificed their lives in the defense of the United States. Pub. L. No. 0-, (). Given the age, size, weight, and design of the memorial cross, any removal scenario would necessarily require it to be cut into pieces and then (if possible) reassembled. Plaintiffs glibly assert that ordering the removal of the memorial cross would not require the destruction of the [c]ross and note that 0 years ago, during a previous challenge to the display of the [memorial] [c]ross on city property, the [Association] agreed to a settlement that would move the [c]ross to a nearby church. Br.. Plaintiffs neglect to mention that at the time, the Ninth Circuit had ordered that the memorial cross must be removed (for violating RESPONSE BRIEF Case No.: 0-CV-0-LAB (WMc)
0 0 California s No Preference Clause), Trunk, F.d 0, and the Association reluctantly agreed to try to move the cross rather than see its certain destruction. That hardly qualifies as proof that removing the cross would not destroy it. And it certainly does not mean that removing the cross is the only possible remedy under the Ninth Circuit s opinion. Indeed, plaintiffs acknowledge, as they must, that the Ninth Circuit s opinion expressly contemplates that the Memorial could be modified to pass constitutional muster. Trunk, F.d at. The Association s position is that to the extent there is any constitutional violation to cure, the Association s subsequent efforts to enhance and expand the Memorial have done just that. In the five years since this Court deemed the summary judgment motions submitted (and thereby established the record reviewed by the Ninth Circuit), the Association has nearly doubled the number of memorial walls and added more than 000 new plaques that surround the memorial cross. Plaintiffs contend (at ) that those significant modifications are unavailing given the appearance, location, and history of the memorial cross. But under that interpretation of the Ninth Circuit s opinion, there is nothing the Association could do short of removing the cross to bring the Memorial up to constitutional code. Plaintiffs do not explain why, if that is so, the Ninth Circuit did not simply order the memorial cross removed rather than suggesting that the Memorial could be modified to pass constitutional muster. The Association s position is that here, as in Van Orden, the physical features of the Memorial confirm that the memorial cross is being used as a veterans memorial and not as a reaffirmation of Christian beliefs. To reiterate, the Memorial currently has more than 00 plaques on eleven memorial walls with space for another 00 plaques. Again, that is nearly double the number of walls and more than a thousand new plaques since the Ninth Circuit reviewed the record RESPONSE BRIEF Case No.: 0-CV-0-LAB (WMc)
0 0 in this case. Together with the other secular symbols of patriotism and sacrifice that make up the Memorial the brick paving stones, the bollards, the benches, and the large American flag that flies atop a flagpole a foot higher than the memorial cross itself the memorial walls and plaques contribute to a physical setting underscoring that the predominant effect of the Memorial is to convey a secular message of patriotism and sacrifice not to endorse religion. See Van Orden, U.S. at 0 (Breyer, J., concurring). What is more, the Memorial has hosted more than 00 ceremonies since April 00 none of which have been sectarian or religious including ceremonies for United States Presidents, Medal of Honor recipients, newly commissioned officers, and changes of command. This subsequent history confirms, too, that the Memorial, including the memorial cross, passes constitutional muster because at the very least, as the Memorial stands today it does not send a message of religious endorsement, but of patriotism, sacrifice, and remembrance. CONCLUSION For the foregoing reasons, the Court should reject plaintiffs proposed remedy of removing the memorial cross. Instead, the Court should issue an order that the Memorial as it now stands passes constitutional muster. Alternatively, if the Court orders removal, it should stay that order pending further review. Since April, 00, when the motions for summary judgment were deemed submitted (Dkt. No. ), the Association has added 0 plaques to the Memorial. The vast majority of the new plaques contain military symbols such as unit designations, airborne qualification badges, and combat infantry badges. Included in that number are new plaques that honor military units and sponsored by corporations (including cable network HBO). Of the 0 new plaques, only include religious symbols Stars of David, Buddhist symbol, Native American symbols, and Latin crosses. Exhibit A attached hereto contains true and correct photographs that accurately and fairly depict the Memorial, events at the Memorial, and selected plaques and benches, all of which comprise or surround the Memorial. So that the Court may fully appreciate the physical features and setting of the Memorial, the Association respectfully suggests that the Court (along with the Parties) visit the site. RESPONSE BRIEF Case No.: 0-CV-0-LAB (WMc)
0 0 Dated: August, 0 Respectfully submitted, BY: /s/ Charles V. Berwanger Charles V. Berwanger Allyson N. Ho* Morgan, Lewis & Bockius LLP Main Street, Suite 00 Dallas, Texas 0 () -0 () -00 (fax) aho@morganlewis.com Jeffrey Carl Mateer* Hiram Stanley Sasser, III* Liberty Institute 00 W Plano Parkway, Suite 00 Plano, Texas 0 () - () - (fax) jmateer@libertyinstitute.org hsasser@libertyinstitute.org Brian M. Hom Morgan, Lewis & Bockius LLP 00 S. Grand Ave., Suite 00 Los Angeles, CA 00 () -00 () -0 (fax) bhom@morganlewis.com *Admitted pro hac vice Attorneys for MOUNT SOLEDAD MEMORIAL ASSOCIATION, Defendant and Real Party in Interest RESPONSE BRIEF Case No.: 0-CV-0-LAB (WMc)
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