Defense of Mount Soledad Veterans Memorial

American Freedom Law Center Co-Founder and Senior Counsel Robert J. Muise has been actively involved for many years with the defense of the Mount Soledad Veterans’ Memorial and its large memorial cross.  In fact, but for the efforts of Muise and California civil rights attorney Charles S. LiMandri, the cross would have likely been removed in 2004.

The challenge to this historic memorial, which is located in San Diego, California, has a long, complicated, and storied history.  A summary of that history is as follows:

In 1989, a self-proclaimed atheist filed a federal lawsuit against the City of San Diego, challenging the public display of what was at the time a stand-alone memorial cross.  The lawsuit alleged that the City was violating both the California and United States Constitutions by allowing the cross to stand on City property.

On December 3, 1991, the federal district court ruled in favor of the atheist and held that the display of the cross violated the No Preference Clause of the California Constitution.  The court issued a permanent injunction forbidding the permanent presence of the stand-alone cross on City property.  The Ninth Circuit affirmed this decision.

Nearly fifteen years later and despite the court’s ruling, the memorial cross remained in the location it occupied since 1954.  During that fifteen year period, however, several attempts were made to sell the property so that the cross would no longer be on public land.  Those efforts were blocked by the courts.  Also during this time, substantial changes were made to the memorial.

Beginning in 2000, the Mt. Soledad Memorial Association (a private organization) made substantial improvements to the memorial.  The Mount Soledad Veterans Memorial is no longer a stand-alone symbol.  Rather, large, concentric granite walls now surrounded the cross.  The walls are adorned with plaques honoring individual veterans—each plaque tells the story of the veteran’s service to our Nation.  Some of the plaques contain Stars of David, honoring Jewish veterans.  Currently, there are over 2,000 plaques, and the total number continues to grow.  The memorial also includes bollards (i.e., small pillars) and brick pavers honoring community and veterans groups and supporters of the memorial.  Additionally, the memorial now features a tall flagpole and a large American flag.

In June 2004, LiMandri learned that the City of San Diego was negotiating a removal of the Mt. Soledad Cross with the atheist and his attorney.  At the request of the then-City Attorney, Casey Gwinn, who said that LiMandri was “the answer to his prayers,” LiMandri attended the City Council meeting and persuaded them to place on the ballot in November 2004 the issue as to whether to put the land under the cross up for public bid.  Unfortunately, the Mt. Soledad Memorial Association campaigned against the proposal because they were afraid that they would be outbid in the public auction.  Proposition K was subsequently defeated.  The opposition misleadingly argued during that campaign that people had to vote “no” to save the cross, without telling them that this meant moving it one-half mile down the hill to a local Presbyterian Church.

At this point, LiMandri petitioned three local Republican Congressmen (all veterans) to intervene with legislation to transfer the cross to federal property.  The purpose of the legislation was to get the memorial out from under the more onerous California Constitution’s prohibitions.  Congressman Duncan Hunter responded, and LiMandri worked closely with his office to get the first federal legislation passed.  LiMandri then lobbied the Mount Soledad Memorial Association and the United Veterans Council (representing some 50 veterans groups in San Diego and over 300,000 veterans) and received their support for the legislation as well. Ironically, as you will see later, this included the support of the two local chapters of the Jewish American War Veterans.

In December 2004, Congress passed and President Bush signed into law Public Law 108-447.  Section 116 of this law: (1) designated the memorial “a national memorial honoring veterans of the United States Armed Forces”; (2) authorized the Department of the Interior to accept a donation of the memorial from the City; and (3) directed the National Park Service to enter into a memorandum of understanding with the Mt. Soledad Memorial Association for the maintenance and administration of the memorial.  LiMandri worked closely with Congressman Duncan Hunter to get this legislation passed.

On March 8, 2005, the San Diego City Council voted not to donate the memorial to the federal government.

As a result, on March 11, 2005, San Diegans for the Mt. Soledad National War Memorial (“San Diegans for Mt. Soledad”), a state-registered, political action committee of local citizens representing a grass-roots community effort to maintain the memorial “as it is, where it is,” was formed.  This private organization was aware that the City was contemplating a settlement of the lawsuit that would involve removing the centerpiece cross from the memorial.

To achieve its purpose of preserving the memorial intact, San Diegans for Mt. Soledad favored transferring the memorial property to the federal government pursuant to the desires and intent of Congress.  Accordingly, the group spearheaded a successful petition drive that resulted in the San Diego City Council repealing its March 8, 2005 decision not to transfer the memorial property to the federal government.  The issue would be presented to the voters for approval as Proposition A.  The group collected and spent over $325,000 and invested thousands of man-hours on the petition drive and the Proposition A campaign.  LiMandri assisted the organization in its efforts.

The language of Proposition A was as follows: “Shall the City of San Diego donate to the federal government all of the City’s rights, title, and interest in the Mt. Soledad Veterans Memorial property for the federal government’s use of the property as a national memorial honoring veterans of the United States Armed Forces?”

During the special election held on July 26, 2005, the citizens of San Diego approved Proposition A by an overwhelming 76% of the vote.

Prior to the election, however, the atheist plaintiff filed a petition for preemptory writ of mandate, requesting injunctive and declaratory relief in San Diego County Superior Court.  After the election, on October 7, 2005, the superior court judge held, inter alia, that Proposition A and the ordinance placing Proposition A on the ballot violated certain provisions of the California Constitution.  On December 7, 2005, Muise and LiMandri filed an appeal of the superior court’s order on behalf of San Diegans for Mt. Soledad as an “aggrieved party.”  Muise and LiMandri were successful as the California appellate court reversed the lower court.  In that ruling, the California Appellate Court stated as follows:

[T]here is no argument presented or any authority cited to us standing for the proposition that the City may transfer the Mount Soledad site only if the cross is removed.  We would have serious concerns respecting the prohibition of hostility to religion embedded in article I, section 4 of our Constitution and the federal establishment clause if, prior to otherwise divesting itself of land on which religious artifacts or icons rest, a government entity were required to remove or destroy them. 

Muise and LiMandri defended that ruling all the way to the California Supreme Court.  [Read the final order denying the atheist’s petition and request to depublish the appellate court’s opinion here]

While the appeal of Proposition A was pending, on July 18, 2005, the atheist filed a motion requesting that the district court finally enforce its permanent injunction.  The district court granted the request and on May 3, 2006, the court ordered the City to remove the memorial cross within 90 days or face fines of $5,000 per day thereafter.  The district court further ordered “that any stay of this order be sought from the Ninth Circuit Court of Appeals.”

On May 18, 2006, Muise and LiMandri took quick action once again and filed a request to intervene in the case on behalf of San Diegans for Mt. Soledad.  They sought intervention for purposes of appealing and seeking a stay of the district court’s May 3, 2006 order and injunction.  The request to intervene was prompted by indications from the City that it was no longer going to defend the cross.

Upon the urging of Muise and LiMandri, on May 31, 2006, the City relented and filed its notice of appeal of the district court’s May 3, 2006 order.  On June 2, 2006, and June 6, 2006, respectively, the City and San Diegans for Mt. Soledad filed urgent motions for a stay of the district court’s order with the Ninth Circuit pending appeal.

On June 19, 2006, the district court denied the request to intervene.  On June 21, 2006, Muise and LiMandri filed a notice of appeal of this denial, seeking review by the Ninth Circuit.  Along with the notice of appeal, Muise and LiMandri filed an “emergency” motion with the appellate court to stay the district court’s May 3, 2006 order pending the appeal.

On June 21, 2006, the Ninth Circuit denied the City’s urgent motion to stay and struck San Diegans for Mt. Soledad’s urgent motion for stay because the group was not yet a party “and has not filed a motion to intervene with the court.”  The Ninth Circuit sua sponte (i.e., on its own) expedited the City’s appeal.

Two days later, on June 23, 2006, San Diegans for Mt. Soledad filed an emergency motion to intervene in the Ninth Circuit, or in the alternative, for the court to consolidate its appeal of the district court’s denial of its motion to intervene with the City’s appeal in order to expedite both cases.

On June 26, 2006, the Ninth Circuit issued two orders.  The first order denied San Diegans for Mt. Soledad’s emergency motion to stay pending appeal of the district court’s denial of its motion to intervene.  The court “sua sponte” expedited the briefing and calendaring of this appeal, and calendared it with the City’s appeal.  The second order denied San Diegans for Mt. Soledad’s emergency motion to intervene in the City’s appeal and denied as moot San Diegans for Mt. Soledad’s request to consolidate the appeals and expedite the briefing and calendaring due to the fact that the court had earlier ordered such relief sua sponte.  Consequently, the two appeals (the denial of the motion to intervene and the City’s appeal of the order) would be argued together.  [See order here]

On June 29, 2006, Muise and LiMandri filed an emergency application with Circuit Justice Anthony M. Kennedy for a stay of the district court’s May 3, 2006 order pending appeal.  The application was filed on behalf of San Diegans for Mt. Soledad.  Muise and LiMandri urged the City to file a similar request, which it eventually did, following their lead.

On July 3, 2006, Justice Kennedy temporarily granted both stay applications, pending further review.  And on July 7, 2006, Justice Kennedy granted the stay of the district court’s injunction, “pending final disposition of the appeal by the United States Court of Appeals for the Ninth Circuit or until further order of this Court.”  [Read the order here].

In considering the stay applications, Justice Kennedy stated that it was his task to “try to predict whether four Justices would vote to grant certiorari should the Court of Appeals affirm the District Court order without modification; try to predict whether the Court would then set the order aside; and balance the so-called ‘stay equities.’”  In consideration of these factors, Justice Kennedy concluded that a stay was “appropriate in this case.”  In addition to the “stay equities,” Justice Kennedy considered “two further factors” that made this case “‘sufficiently unusual’ to warrant granting a stay.”  These two factors were (1) the recent Act of Congress designating the Memorial a “national memorial honoring veterans of the United States Armed Forces” and authorizing the Secretary of the Interior to take title to the memorial property on behalf of the federal government if the City offers to donate it; and (2) the impact of Proposition A, which seeks to carry out the transfer contemplated by the federal legislation.  Finally, Justice Kennedy noted that although the Supreme Court had previously denied certiorari in this case, the changed circumstances—specifically citing “Congress’ evident desire to preserve the memorial”—“make[] it substantially more likely that four Justices will agree to review the case in the event the Court of Appeals affirms the District Court’s order.”

On August 14, 2006, President Bush signed new federal legislation, which immediately “vested in the United States all right, title, and interest in and to, and the right to immediate possession of, the Mt. Soledad Veterans Memorial.”  The purpose of the legislation was to preserve the Mt. Soledad Veterans Memorial, including its centerpiece memorial cross, for future generations of Americans.  The legislation received overwhelming bi-partisan support in the House and unanimous consent in the Senate.  LiMandri and Muise again assisted with this new legislation.  In fact, LiMandri was invited to be present at the White House when the bill was signed by President Bush.

Following this transfer of the property, Muise and LiMandri promptly filed a motion to dismiss the atheist’s 1989 lawsuit on the grounds that it was moot since the memorial cross was now on federal property and the California Constitution was no longer applicable.  After additional briefing, Muise argued the motion, and the Ninth Circuit granted it and dismissed the case.  [Read the Ninth Circuit’s decision here].

Consequently, if not for the tireless efforts of Muise and LiMandri to force the issue of appealing the district court ruling, defending Proposition A, seeking emergency review of the order to remove the cross with Justice Kennedy, who issued the stay, and working with Congress to ensure that the transfer legislation passed, there is little doubt that the cross would not be there today.

Following these victories, the ACLU filed a new lawsuit in a California federal court against the Mt. Soledad Veterans Memorial, claiming that the cross display violates the Establishment Clause of the U.S. Constitution now that the cross was on federal property.  The lawsuit was filed against the Secretary of Defense on behalf of the Jewish War Veterans of the United States of America, a Jewish doctor who served two years in the Navy, his Muslim wife who came to this country from Iran four years ago, and an individual resident of San Diego who is “discomfited” by the presence of the cross.  This case was defended by the Department of Justice (DOJ).

DOJ attorneys from the Bush adminstration at the time sought assistance from Muise and LiMandri, but specifically requested that they not intervene (the opposition was arguing that because counsel are Catholic and have had such a significant role in the case that this is evidence of an improper religious purpose), promising them the DOJ would defend the cross all the way to the Supreme Court if necessary.  Muise and LiMandri agreed to continue to assist as “friends of the court” by filing amicus curiae briefs in the case.

The federal district court judge handling the case ruled in favor of the veterans’ memorial and dismissed the ACLU’s lawsuit.  Muise and LiMandri filed an “amicus brief” in the case and LiMandri was permitted to present oral argument in the district court.  [Read the district court opinion here].

That ruling was appealed to the Ninth Circuit.  Muise and LiMandri again filed an amicus curiae brief in defense of the veterans’ memorial.

 On January 4, 2011, the Ninth Circuit reversed the district court and held that the memorial cross violated the Establishment Clause.  The Ninth Circuit stayed its order pending U.S. Supreme Court review.  [Read the Ninth Circuit’s decision here].

Rear Admiral Denton PlaqueOn March 5, 2012, the Mount Soledad Memorial Association, which at one time was trying to negotiate a settlement that would include moving the cross, decided to file a petition for review with the U.S. Supreme Court of the Ninth Circuit’s adverse ruling.  The memorial association still maintains the memorial and the plagues so it has an interest in preserving the cross.  On March 12, 2012, the DOJ filed a petition for review with the U.S. Supreme Court.

On March 14, 2012, Muise and LiMandri filed a “friend of the court” brief in the U.S. Supreme Court in defense of the memorial.  The brief was filed on behalf of former Navy pilot, prisoner of war, and U.S. Senator Rear Admiral Jeremiah Denton, USN (Ret.) and the families of Marine Majors Michael D. Martino and Gerald Bloomfield, III, both of whom were killed in combat in Iraq on November 2, 2005 when their Cobra attack helicopter was shot down by a surface-to-air missile.  The memories and sacrifices of these war heroes are now preserved by plaques displayed at the foot of the Mt. Soledad cross.


AFLC’s brief presents a compelling, personal account of the importance of the Mt. Soledad memorial cross to the families and friends of those who sacrificed so much for our Nation.  Muise echoed this point, “The purpose of our brief is to provide a voice in the Supreme Court that is not often heard.  It is the voice of those who will be truly harmed in a real way by the destruction of this veterans’ memorial simply because it contains a religious symbols that has long been a part of our Nation’s religious heritage.  For most reasonable American citizens, and particularly those who have sacrificed so much and whose sons, daughters, husbands, and wives have died defending our country, veterans’ memorials, including those with religious symbols, provide a lasting tribute to our servicemen and servicewomen.”

As argued in the brief:

From time immemorial, crosses have been used to memorialize fallen war veterans.  A cross in the context of a war memorial has an undeniable historical meaning of self-sacrifice—in particular, of making the ultimate sacrifice for one’s country.

War memorials provide a place where family members, friends, and comrades of our war veterans can pay tribute to their heroes’ sacrifices.  It is fitting that a memorial, which provides much comfort, peace, and solace for those who have sacrificed during time of war, contains a cross—a universal symbol of sacrifice.  It would desecrate the memories of these war heroes to dismantle historic memorials by removing the crosses, as the Ninth Circuit’s decision requires in this case.  Accordingly, Amici Curiae urge this Court to reverse the Ninth Circuit, uphold the display of the cross, and preserve this and other such veterans’ memorials for future generations.

AFLC further argued in the brief that the display of the memorial cross does not “establish” Christianity as a national religion in violation of the Establishment Clause.  Rather, as noted in the brief, the removal of the cross exhibits “hostility toward religion,” which our Constitution forbids.

The brief concludes with a strong message to the Supreme Court:

In the final analysis, a memorial cross does not convey an impermissible message of endorsement of religion to an informed, reasonable observer.  Rather, such memorials convey an unmistakably American message of patriotism and self-sacrifice.  To dismantle this or any other historic memorial would desecrate the memories and the sacrifices of our war veterans and cause incalculable harm to these veterans and their families, friends, and comrades.  Thus, this Court should reject the Ninth Circuit’s misguided efforts to destroy a national landmark and treasure based on a flawed view of the Constitution.  At the end of the day, accepting the Ninth Circuit’s view of the law in this case will cause real and palpable harm.