Crossing the line

In the never-ending battle over the constitutionality of religious symbols on public property, there are some close cases. But the huge cross atop a war memorial on Mt. Soledad in San Diego isn’t one of them. The U.S. 9th Circuit Court of Appeals was right to rule that the prominence of this consummately Christian symbol on the memorial violated the 1st Amendment.

The cross, on land acquired by the federal government in 2006, is 29 feet high and stands on a 14-foot-high base. As Judge M. Margaret McKeown noted in her opinion for the court, it is “visible from miles away and towers over the thousands of drivers who travel daily on Interstate 5 below.” It likewise dominates the memorial itself, overshadowing secular memorial plaques on a wall at the base of the structure.

The size of the cross wouldn’t be an issue if it were a secular symbol of grief for fallen soldiers. But McKeown effectively refuted that notion, observing: “There is simply no evidence … that the cross has been widely embraced by or even applied to non-Christians as a secular symbol of death.” Nor, she wrote, is there a tradition of crosses serving as “default grave markers” on war memorials. That’s important, because one standard by which the Supreme Court evaluates religious displays on public property is whether they reflect long-standing practice.

It’s easy to mock court decisions about the separation of church and state as confusing and inconsistent. For example, on the same day in 2005 that the Supreme Court struck down the posting of the Ten Commandments in Kentucky county courthouses, it upheld the constitutionality of a Ten Commandments monument on the grounds of Texas’ state Capitol. But, given the complexity of some church-state cases, the courts should not be blamed for drawing lines based on specific facts. The line drawn by McKeown is an obvious one.

Unfortunately, that doesn’t mean her decision will be upheld by the Supreme Court if it agrees to review the case. In a decision last year involving a cross in the Mojave National Preserve, Justice Anthony M. Kennedy unconvincingly wrote that “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 … help secure an honored place in history for this nation and its people.” We entirely disagree and hope that McKeown’s opinion will change Kennedy’s mind.