Jewish War Veterans of the Uni v. City of San Diego ( 2011 )


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  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    STEVE TRUNK,                            
    Plaintiff,
    and
    JEWISH WAR VETERANS OF THE                   No. 08-56415
    UNITED STATES OF AMERICA, INC.;
    RICHARD A. SMITH; MINA SAGHEB;                 D.C. Nos.
    JUDITH M. COPELAND,                        3:06-cv-01597-
    LAB-WMC
    Plaintiffs-Appellants,
    3:06-cv-01728-
    v.                            LAB-WMC
    CITY OF SAN DIEGO; UNITED STATES
    OF AMERICA; ROBERT M. GATES,
    Secretary of Defense,
    Defendants-Appellees.
    
    175
    176        JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    STEVE TRUNK, PHILIP K. PAULSON,           
    Plaintiffs-Appellants,
    and
    RICHARD A. SMITH; MINA SAGHEB;
    JUDITH M. COPELAND; JEWISH WAR                 No. 08-56436
    VETERANS OF THE UNITED STATES OF
    D.C. Nos.
    AMERICA, INC.,
    3:06-cv-01597-
    Plaintiffs,
         LAB-WMC
    v.                          3:06-cv-01728-
    CITY OF SAN DIEGO; UNITED STATES                LAB-WMC
    OF AMERICA; MOUNT SOLEDAD                        OPINION
    MEMORIAL ASSOCIATION, Real
    parties in interest; ROBERT M.
    GATES, Secretary of Defense, in
    his official capacity,
    Defendants-Appellees,
    
    Appeal from the United States District Court
    for the Southern District of California
    Larry A. Burns, District Judge, Presiding
    Argued December 9, 2009
    Submitted December 30, 2010
    Pasadena, California
    Filed January 4, 2011
    Before: Harry Pregerson, M. Margaret McKeown, and
    Richard A. Paez, Circuit Judges.
    Opinion by Judge McKeown
    180       JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    COUNSEL
    John David Blair-Loy, ACLU Foundation of San Diego and
    Imperial Counties, San Diego, California; Matthew T. Jones
    [argued], Adam Raviv, Wilmer Hale LLP, Washington, DC;
    Daniel Mach, American Civil Liberties Union, Washington,
    DC; James E. McElroy, Del Mar, California, for the
    plaintiffs-appellants.
    George Frederick Schaefer, City Attorney’s Office, San
    Diego, California, for defendant-appellee City of San Diego.
    Kathryn E. Kovacs [argued], U.S. Department of Justice,
    Washington, DC; Thomas C. Stahl, U.S. Attorney’s Office,
    Washington, DC, for defendants-appellees United States of
    America and Robert M. Gates.
    OPINION
    McKEOWN, Circuit Judge:
    The forty-three foot cross (“Cross”) and veterans’ memo-
    rial (“Memorial”) atop Mount Soledad in La Jolla, California,
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO                181
    have generated controversy for more than twenty years. Dur-
    ing this time, the citizens of San Diego (where La Jolla is
    located), the San Diego City Council, the United States Con-
    gress, and, on multiple occasions, the state and federal courts
    have considered its fate. Yet no resolution has emerged.
    Indeed, we believe that no broadly applauded resolution is
    possible because this case represents the difficult and intracta-
    ble intersection of religion, patriotism, and the Constitution.
    Hard decisions can make good law, but they are not painless
    for good people and their concerns.
    Much lore surrounds the Cross and its history. But the
    record is our guide and, indeed, except for how they charac-
    terize the evidence, the parties essentially agree about the his-
    tory. A cross was first erected on Mount Soledad in 1913.
    That cross was replaced in the 1920s and then blew down in
    1952. The present Cross was dedicated in 1954 “as a reminder
    of God’s promise to man of everlasting life and of those per-
    sons who gave their lives for our freedom . . . .” The primary
    objective in erecting a Cross on the site was to construct “a
    permanent handsome cast concrete cross,” but also “to create
    a park worthy of this magnificent view, and worthy to be a
    setting for the symbol of Christianity.” For most of its history,
    the Cross served as a site for annual Easter services. Only
    after the legal controversy began in the late 1980s was a
    plaque added designating the site as a war memorial, along
    with substantial physical revisions honoring veterans. It was
    not until the late 1990s that veterans’ organizations began
    holding regular memorial services at the site.1
    More fundamentally, this war memorial—with its imposing
    Cross—stands as an outlier among war memorials, even those
    incorporating crosses. Contrary to any popular notion, war
    memorials in the United States have not traditionally included
    or centered on the cross and, according to the parties’ evi-
    1
    We include as Appendix A photographs from the record that depict the
    Cross up close and from a distance.
    182       JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    dence, there is no comparable memorial on public land in
    which the cross holds such a pivotal and imposing stature,
    dwarfing by every measure the secular plaques and other
    symbols commemorating veterans.
    The Latin cross, long acknowledged as a preeminent Chris-
    tian symbol, remains, as a towering forty-three foot structure,
    the dominant feature of the Memorial. As we concluded the
    last time we considered this matter, albeit under the California
    Constitution, “[this] sectarian war memorial carries an inher-
    ently religious message and creates an appearance of honoring
    only those servicemen of that particular religion.” Ellis v. City
    of La Mesa, 
    990 F.2d 1518
    , 1527 (9th Cir. 1993). But we
    revisit the question in this case because the Cross, originally
    on city land, was transferred to the federal government
    through a 2006 congressional initiative. This suit requires us
    to consider whether the Memorial, with the Cross as its defin-
    ing feature, violates the First Amendment to the federal Con-
    stitution.
    Simply because there is a cross or a religious symbol on
    public land does not mean that there is a constitutional viola-
    tion. Following the Supreme Court’s directive, we must con-
    sider the purpose of the legislation transferring the Cross, as
    well as the primary effect of the Memorial as reflected in con-
    text, history, use, physical setting, and other background.
    Although we conclude that Congress did not harbor a sectar-
    ian purpose in establishing the Memorial in 2006, the resolu-
    tion of the primary effect of the Memorial is more nuanced
    and is driven by the factual record. We do not look to the
    sound bites proffered by both sides but instead to the exten-
    sive factual background provided in the hundreds of pages of
    historical documents, declarations, expert testimony, and pub-
    lic records. Here, a fact-intensive evaluation drives the legal
    judgment.
    The Supreme Court’s framework for evaluating monuments
    on public lands and for resolving Establishment Clause cases
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO           183
    under the First Amendment leads us to conclude that the dis-
    trict court erred in declaring the Memorial to be primarily
    non-sectarian, and granting summary judgment in favor of the
    government and the Memorial’s supporters. We are not faced
    with a decision about what to do with a historical, longstand-
    ing veterans memorial that happens to include a cross. Nor
    does this case implicate military cemeteries in the United
    States that include headstones with crosses and other religious
    symbols particular to the deceased. Instead we consider a site
    with a free-standing cross originally erected in 1913 that was
    replaced with an even larger cross in 1954, a site that did not
    have any physical indication that it was a memorial nor take
    on the patina of a veterans memorial until the 1990s, in
    response to the litigation. We do not discount that the Cross
    is a prominent landmark in San Diego. But a few scattered
    memorial services before the 1990s do not establish a histori-
    cal war memorial landmark such as those found in Arlington
    Cemetery, Gettysburg, and the Vietnam Veterans Memorial in
    Washington, D.C. Resurrection of this Cross as a war memo-
    rial does not transform it into a secular monument.
    We acknowledge the good intentions and heartfelt emo-
    tions on all sides of this dispute, and recognize the sincere
    anguish that will be felt regardless of whether we affirm or
    reverse the district court. We also acknowledge the historical
    role of religion in our civil society. In no way is this decision
    meant to undermine the importance of honoring our veterans.
    Indeed, there are countless ways that we can and should honor
    them, but without the imprimatur of state-endorsed religion.
    At the same time, in adopting the First Amendment, the
    Founders were prescient in recognizing that, without eschew-
    ing religion, neither can the government be seen as favoring
    one religion over another. The balance is subtle but funda-
    mental to our freedom of religion.
    BACKGROUND
    Mount Soledad is an 822-foot hill in the La Jolla commu-
    nity of San Diego, California, between Interstate 5 and the
    184        JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    Pacific Ocean. There has been a Latin cross atop Mount Sole-
    dad since 1913. After the first cross was destroyed by vandals
    in 1923, a new cross was erected. That cross stood until it
    blew down in 1952. The current Cross was erected in 1954
    and was dedicated as a memorial to American service mem-
    bers and a tribute to God’s “promise of everlasting life.” The
    Cross is quite large—twenty-nine feet high and twelve feet
    across—stands atop a fourteen foot high base, and weighs
    approximately twenty-four tons. As a result, the Cross is visi-
    ble from miles away and towers over the thousands of drivers
    who travel daily on Interstate 5 below. The Mount Soledad
    Memorial Association (“the Association”), the civic organiza-
    tion that erected the Cross, has largely paid for the Cross’s
    maintenance, though some public funds have been expended
    as well. Paulson v. City of San Diego, 
    294 F.3d 1124
    , 1125
    (9th Cir. 2002) (en banc).
    Although the Cross stood alone for most of its history, it
    has, since the late 1990s, become the centerpiece of a more
    extensive war memorial. This Memorial now features six con-
    centric walls around the base of the Cross and approximately
    2,100 black stone plaques honoring individual veterans, pla-
    toons, and groups of soldiers. Brick paving stones also honor
    veterans; twenty-three bollards, or posts, honor community
    and veterans’ organizations; and an American flag flies from
    a large flagpole. Until the events leading up to this suit, the
    Memorial stood on land belonging to the City of San Diego
    (“the City”).
    The Memorial has been the subject of contentious litigation
    for the last two decades. In 1989, two Vietnam veterans sued
    the City, seeking to enjoin it from allowing the Cross to
    remain on city land. Murphy v. Bilbray, 
    782 F. Supp. 1420
    ,
    1424 (S.D. Cal. 1991). Ultimately, the district court enjoined
    the display of the Cross—which, at the time, stood alone—as
    a violation of the No Preference Clause of the California Consti-
    tution.2 
    Id. at 1438
    . We affirmed the injunction in Ellis, 990
    2
    The No Preference Clause provides that “[f]ree exercise and enjoyment
    of religion without discrimination or preference are guaranteed.” Cal.
    Const. art. I, § 4.
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO            185
    F.2d at 1527-28, holding that the Cross, to the extent that it
    could be characterized as a memorial, was “[a] sectarian war
    memorial carr[ying] an inherently religious message and
    creat[ing] an appearance of honoring only . . . servicemen of
    [a] particular religion.” Id. at 1527. We did not reach the issue
    of whether the Cross violated the federal Constitution’s Estab-
    lishment Clause.
    In response to the injunction, the City submitted a ballot
    initiative known as Proposition F to authorize the sale of a
    twenty-two square foot parcel of land sitting directly beneath
    the Cross to the Association. Seventy-six percent of those vot-
    ing approved the measure. In October 1994, the City sold the
    land to the Association without soliciting offers or proposals
    from any other prospective buyers. See Paulson, 
    294 F.3d at 1126
    . The district court invalidated the sale, however, holding
    that the City’s failure to consider other prospective buyers
    created the appearance that the City preferred the Christian
    religion and that the primary purpose of the sale was to pre-
    serve the Cross. Murphy v. Bilbray, No. 90-134 GT, 
    1997 WL 754604
    , *10-11 (S.D. Cal. Sept. 18, 1997). The City
    responded by soliciting bids for a second land sale, ultimately
    selling the land to the Association in September 1998. The
    Association then proceeded to modify the property to incorpo-
    rate elements directly honoring veterans.
    After further litigation, our court, sitting en banc, held that
    the 1998 sale violated California’s No Preference Clause
    because it was structured to give “a direct, immediate, and
    substantial financial advantage to bidders who had the sectar-
    ian purpose of preserving the cross.” Paulson, 
    294 F.3d at 1133
    . Following that decision, the parties then reached a set-
    tlement that would move the Cross to a neighboring church.
    In July 2004, the City Council passed a resolution to compel
    the City to accept the settlement if voters did not approve
    Proposition K, which would have required a third sale of the
    land to the highest bidder. City voters rejected Proposition K.
    186        JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    Soon after the failure of Proposition K, two local members
    of Congress, then-Representative Randy Cunningham and
    Representative Duncan Hunter, inserted a rider into the 2005
    omnibus budget bill designating the Mount Soledad property
    as a national veterans’ memorial and authorizing the federal
    government to accept its donation. Consolidated Appropria-
    tions Act, Pub. L. No. 108-447, § 116, 
    118 Stat. 2809
    , 3346-
    47 (codified at 
    16 U.S.C. § 431
     note). The Thomas More Law
    Center,3 whose West Coast Director, Charles LiMandri, was
    a signatory of the ballot argument in favor of Proposition K,
    lobbied local members of Congress to intervene. President
    George W. Bush signed the omnibus bill into law on Decem-
    ber 8, 2004.
    The City Council declined to donate the Mount Soledad
    property to the federal government.4 A new organization
    formed by LiMandri and others launched a referendum peti-
    tion to “save the Mount Soledad cross” via transfer to the fed-
    eral government. The City Council rescinded its decision and
    submitted the donation question to the voters as Proposition
    A. Proposition A garnered seventy-six percent of the vote, but
    a state trial court enjoined its implementation. See Paulson v.
    Abdelnour, 
    51 Cal. Rptr. 3d 575
    , 585 (Cal. Ct. App. 2006).
    While the appeal of the state court injunction was pending,
    the federal district court issued an order directing the City to
    remove the Cross within ninety days or pay a daily fine of
    $5,000. Paulson v. City of San Diego, No. 89-0820 GT, 
    2006 WL 3656149
    , at *2 (S.D. Cal. May 3, 2006). The City
    appealed and sought a stay pending appeal, which our court
    denied. Justice Kennedy then granted the City’s stay applica-
    tion. See San Diegans for the Mt. Soledad Nat’l War Mem’l
    v. Paulson, 
    548 U.S. 1301
    , 1302 (2006).
    3
    The Thomas More Law Center is a “not-for-profit public interest law
    firm dedicated to the defense and promotion of the religious freedom of
    Christians, time-honored family values, and the sanctity of human life.”
    4
    The then-City Attorney formally opined that the donation would vio-
    late the federal and state constitutions.
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO                      187
    In June 2006, Representatives Hunter, Issa, and Bilbray
    introduced H.R. 5683 (“the Act”), which proposed to seize the
    Memorial by eminent domain.5 The House approved the bill
    by a vote of 349 to 74. 152 Cong. Rec. H5434 (daily ed. July
    19, 2006). The Senate approved the measure by unanimous
    consent.
    The Act authorized the land transfer “in order to preserve
    a historically significant war memorial, designated the Mt.
    Soledad Veterans Memorial in San Diego, California, as a
    national memorial honoring veterans of the United States
    Armed Forces . . . .” 
    Id.
     at H5422, § 2(a). In support of the
    acquisition, Congress found that the Memorial has stood as a
    tribute to U.S. veterans for over fifty-two years, id. § 1(1), and
    “now serves as a memorial to American veterans of all wars,”
    id. § 1(2). The Act also declared that “[t]he United States has
    a long history and tradition of memorializing members of the
    Armed Forces who die in battle with a cross or other religious
    emblem of their faith, and a memorial cross is fully integrated
    as the centerpiece of the multi-faceted Mt. Soledad Veterans
    Memorial that is replete with secular symbols.” Id. § 1(3).
    The Act required the Department of Defense, which has since
    assigned the duties to the Navy, to manage the property and
    enter a memorandum of understanding with the Association
    for the Memorial’s “continued maintenance.” Id. § 2(c).6
    The federal government took possession of the Memorial in
    August 2006. Pub. L. No. 109-272, § 2(a), 
    120 Stat. 770
    5
    LiMandri stated publicly that he helped draft the legislation, a fact that
    the government contests. The Thomas More Law Center also lobbied Sen-
    ator Jeff Sessions, the sponsor of the Senate version of the bill, for his sup-
    port.
    6
    This court dismissed the City’s appeal of the district court’s order as
    moot in light of the Act. Paulson v. City of San Diego, 
    475 F.3d 1047
    ,
    1048 (9th Cir. 2007). The California Court of Appeal also reversed the
    trial court’s injunction of Proposition A, holding that the City’s effort to
    donate the memorial to the United States did not violate the state or fed-
    eral Constitutions. Abdelnour, 
    51 Cal. Rptr. 3d at 589-603
    .
    188          JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    (2006). That same month, Steve Trunk and Philip Paulson
    (now deceased) filed suit against the City and the United
    States in district court, alleging violations of the U.S. and Cal-
    ifornia Constitutions.7 Jewish War Veterans, which describes
    itself as “the oldest active national veterans’ service in Ameri-
    ca” and as a group that “engages in extensive advocacy in
    support of religious liberty,” also filed suit against the Secre-
    tary of Defense, complaining that the display of the Cross vio-
    lated the Establishment Clause. The district court consolidated
    the two cases.8
    In 2008, the district court denied Jewish War Veterans’s
    motion for summary judgment and granted the government’s
    motion for summary judgment. Applying the Supreme
    Court’s frameworks set forth in both Lemon v. Kurtzman, 
    403 U.S. 602
     (1971), and Van Orden v. Perry, 
    545 U.S. 677
    (2005), the district court held that Congress had acted with a
    secular purpose in acquiring the Memorial and that the
    Memorial did not have the effect of advancing religion. This
    appeal followed.
    ANALYSIS
    I.       THE LEMON AND VAN ORDEN FRAMEWORKS
    We review de novo the district court’s decision on cross
    motions for summary judgment. See Donohue v. Quick Col-
    lect, Inc., 
    592 F.3d 1027
    , 1030 (9th Cir. 2010). “We must
    determine, viewing the evidence in the light most favorable to
    . . . the nonmoving party, whether there are any genuine
    7
    Trunk later filed an amended complaint seeking, among other things,
    a declaration that the Act was void ab initio. The district court held that
    Trunk lacked standing to challenge the Act, dismissed that claim for lack
    of jurisdiction, and dismissed the City as a party.
    8
    We refer to Trunk, Paulson, and Jewish War Veterans collectively as
    “Jewish War Veterans,” and to the United States and the Secretary of
    Defense collectively as “the government.”
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO            189
    issues of material fact and whether the district court correctly
    applied the [relevant] substantive law.” Olsen v. Idaho State
    Bd. of Med., 
    363 F.3d 916
    , 922 (9th Cir. 2004). We have
    jurisdiction to review the district court’s denial of the Jewish
    War Veterans’s summary judgment motion because the dis-
    trict court considered cross motions for summary judgment
    and granted the government’s motion. The district court’s
    grant of summary judgment was a final decision, giving us
    jurisdiction. See Abend v. MCA, Inc., 
    863 F.2d 1465
    , 1482
    n.20 (9th Cir. 1988).
    [1] The First Amendment provides that “Congress shall
    make no law respecting an establishment of religion.” U.S.
    Const. amend. I. As the Supreme Court has explained, the
    “touchstone” of Establishment Clause jurisprudence is the
    requirement of “ ‘governmental neutrality between religion
    and religion, and between religion and nonreligion.’ ” McCr-
    eary County v. ACLU, 
    545 U.S. 844
    , 860 (2005) (quoting
    Epperson v. Arkansas, 
    393 U.S. 97
    , 104 (1968)). However,
    because “neutrality” is a general principle, it “cannot possibly
    lay every issue to rest, or tell us what issues on the margins
    are substantial enough for constitutional significance.” McCr-
    eary, 
    545 U.S. at 876
    ; see also Van Orden, 
    545 U.S. at 699
    (Breyer, J., concurring in the judgment) (“[W]here the Estab-
    lishment Clause is at issue, tests designed to measure ‘neutral-
    ity’ alone are insufficient.”).
    In particular, we do not apply an absolute rule of neutrality
    because doing so would evince a hostility toward religion that
    the Establishment Clause forbids. Thus the Court in Mc-
    Creary approvingly cited Justice Harlan’s observation that
    “ ‘neutrality’ . . . is not so narrow a channel that the slightest
    deviation from an absolutely straight course leads to condem-
    nation” by the First Amendment. McCreary, 
    545 U.S. at 876
    (quoting Sherbert v. Verner, 
    374 U.S. 398
    , 422 (1963) (Har-
    lan, J., dissenting)); see also School Dist. of Abington Twp. v.
    Schempp, 
    374 U.S. 203
    , 306 (1963) (Goldberg, J., concurring)
    (cautioning that an “untutored devotion to . . . neutrality” can
    190       JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    lead to “a brooding and pervasive devotion to the secular and
    a passive, or even active, hostility to the religious”). We must
    undertake a more nuanced analysis.
    The Supreme Court has articulated two related constructs
    that guide our analysis: the test set forth in Lemon, which—
    through various twists and turns—has long governed Estab-
    lishment Clause claims, and the analysis for monuments and
    religious displays more recently articulated in Van Orden.
    The Lemon test asks whether the action or policy at issue (1)
    has a secular purpose, (2) has the principal effect of advanc-
    ing religion, or (3) causes excessive entanglement with reli-
    gion. Lemon, 
    403 U.S. at 612-13
    . In recent years, the Supreme
    Court essentially has collapsed these last two prongs to ask
    “whether the challenged governmental practice has the effect
    of endorsing religion.” Access Fund v. U.S. Dep’t of Agric.,
    
    499 F.3d 1036
    , 1043 (9th Cir. 2007) (reviewing cases).
    Although Lemon has been strongly criticized, the Supreme
    Court has never overruled it, and in fact applied the Lemon
    test to a Ten Commandments display in an opinion issued the
    same day as Van Orden. McCreary, 
    545 U.S. at 859-64
    ; see
    also Card v. City of Everett, 
    520 F.3d 1009
    , 1016 (9th Cir.
    2008) (discussing the Supreme Court’s criticism and use of
    the Lemon test).
    In Van Orden, the Court declined to apply Lemon to a Ten
    Commandments monument on the grounds of the Texas State
    Capitol. Addressing whether that monument violated the
    Establishment Clause, the plurality struggled with reconciling
    “the strong role played by religion and religious traditions
    throughout our Nation’s history” with the constitutional sepa-
    ration of church and state. Van Orden, 
    545 U.S. at 683
    . The
    plurality concluded that the Lemon test was “not useful in
    dealing with the sort of passive monument that Texas ha[d]
    erected on its Capitol grounds.” 
    Id. at 686
    . Instead, its analy-
    sis focused on “the nature of the monument and . . . our
    Nation’s history.” 
    Id.
     Taking into consideration the role of
    God and the Ten Commandments in the nation’s founding
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO         191
    and history, 
    id. at 686-87, 689-90
    , the monument’s passive
    use, and its “undeniable historical meaning,” 
    id. at 690
    , the
    plurality concluded that the display passed constitutional mus-
    ter, 
    id. at 692
    .
    As we have recognized, Justice Breyer’s concurrence pro-
    vides the controlling opinion in Van Orden. Card, 
    520 F.3d at
    1017-18 n.10. Justice Breyer envisioned a set of “difficult
    borderline cases” like the Texas Capitol monument for which
    there could be “no test-related substitute” Lemon or otherwise
    —“for the exercise of legal judgment.” Van Orden, 
    545 U.S. at 700
     (Breyer, J., concurring in the judgment). Rather than
    requiring the application of a test, Justice Breyer concluded,
    displays like the Texas monument demand a fact-intensive
    assessment of whether they are faithful to the underlying pur-
    poses of the Establishment Clause. See 
    id.
     He explained that
    this flexible assessment entails a range of factors, including
    the monument’s purpose, the perception of that purpose by
    viewers, the extent to which the monument’s physical setting
    suggests the sacred, and the monument’s history. See 
    id. at 701-03
    . Notably, this inquiry does not dispense with the
    Lemon factors, but rather retains them as “useful guideposts.”
    
    Id. at 700
    . Justice Breyer’s analysis thus incorporated many
    of the same factors that figure in a Lemon analysis—in partic-
    ular, the predominant purpose of the monument and its effect
    on viewers—while refusing to be bound to any lock-step for-
    mula. See 
    id. at 701-04
    .
    Van Orden expressly establishes an “exception” to the
    Lemon test in certain borderline cases regarding the “constitu-
    tionality of some longstanding plainly religious displays that
    convey a historical or secular message in a non-religious con-
    text.” Card, 
    520 F.3d at 1016
    . Unfortunately, Justice Breyer
    did not explain in detail how to determine whether a case was
    borderline and thus less appropriate for the typical Lemon
    analysis. Card—the only Ninth Circuit case to date to apply
    the Van Orden exception—considered a monument that was
    almost identical to the monument in Van Orden and therefore
    192       JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    provides little additional guidance. See Card, 
    520 F.3d at 1018
     (“We cannot say how narrow or broad the ‘exception’
    may ultimately be . . . . However, we can say that the excep-
    tion at least includes the display of the Ten Commandments
    at issue here.”).
    [2] Ultimately, we need not resolve the issue of whether
    Lemon or Van Orden controls our analysis of the Memorial.
    Both Lemon and Van Orden require us to determine Con-
    gress’s purpose in acquiring the Memorial and to engage in a
    factually specific analysis of the Memorial’s history and set-
    ting. On the detailed record here, which includes extensive
    evidence relevant to each of the factors in Van Orden and to
    the purpose and effect prongs of Lemon, both cases guide us
    to the same result.
    II.   CONGRESSIONAL PURPOSE IN ACQUIRING THE MEMORIAL
    Under both Lemon and Van Orden, we first inquire as to
    the purpose of the government action to determine whether it
    is predominantly secular in nature. See Van Orden, 
    545 U.S. at 701-02
    ; Lemon, 
    403 U.S. at 612
    . We hold that Congress’s
    acquisition of the Memorial was predominantly secular in its
    goals.
    As an initial matter, Jewish War Veterans argues that, to
    determine purpose, we need look no further than the Cross
    itself. In its view, “the government action itself besp[eaks] the
    purpose” because the Latin cross is the “preeminent symbol”
    of Christianity. This argument is at bottom one regarding the
    Memorial’s predominant effect, and we consider it more
    appropriate to address in our discussion of effects below. See
    infra Section III.
    The Supreme Court explained in McCreary that the pur-
    pose inquiry does not call for “any judicial psychoanalysis of
    a drafter’s heart of hearts.” McCreary, 
    545 U.S. at 862
    .
    Rather, “[t]he eyes that look to purpose belong to an objective
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO                    193
    observer, one who takes account of the traditional external
    signs that show up in the text, legislative history, and imple-
    mentation of the statute, or comparable official act.” 
    Id.
     (inter-
    nal quotation marks omitted). Although the secular purpose
    must “be genuine, not a sham,” 
    id. at 864
    , when a statute is
    at issue, we must defer to Congress’s stated reasons if a “plau-
    sible secular purpose . . . may be discerned from the face of
    the statute,” Mueller v. Allen, 
    463 U.S. 388
    , 394-95 (1983).
    [3] The purpose of Congress’s acquisition of the Memorial
    was predominantly secular in nature. The Act sought “to pre-
    serve a historically significant war memorial . . . as a national
    memorial honoring veterans of the United States Armed
    Forces.” Pub. L. No. 109-272, § 2(a). As the district court
    noted, the statute is “not directed to the cross per se, nor does
    it require the continued presence of the cross as part of the
    memorial; it simply requires the Mount Soledad site be main-
    tained as a veterans’ memorial.”
    The Act’s statement of purpose likely ends the inquiry. See
    Mueller, 
    463 U.S. at 394-95
    . Nevertheless, the Act is arguably
    ambiguous to the extent that it seeks “to preserve a histori-
    cally significant war memorial.” Pub. L. 109-272 § 2(a)
    (emphasis added). In Paulson, the case invalidating the City’s
    1998 land sale to the Association, we held that only the Cross
    on Mount Soledad bears historical significance. Paulson, 
    294 F.3d at
    1132 n.5 (emphasis added). Under Paulson, the Act
    could be read to aim at preserving the Cross, which would
    arguably make its purpose predominantly religious.
    [4] But even assuming that the Act is ambiguous, the legis-
    lative history reflects Congress’s predominantly secular pur-
    pose in acquiring the Memorial.9 Representative Hunter, for
    9
    These legislative recitations do not bind us as to our evaluation of the
    actual history and chronology of the Cross. They are simply instructive as
    to congressional perspective and purpose. We must evaluate the Cross
    itself on the basis of the record before us, which includes not only the Act,
    but also hundreds of pages of documents about the Cross’s history and set-
    ting and about the use of crosses in war memorials more generally that
    were not before Congress when it acquired the Memorial.
    194       JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    example, described the Cross as “not only a religious sym-
    bol,” but also “a venerated landmark beloved by the people of
    San Diego for over 50 years” and “a fitting memorial to all
    persons who have served and sacrificed for our Nation as
    members of the Armed Forces.” 152 Cong. Rec. H5423 (daily
    ed. July 19, 2006); see also 
    id.
     at H5422-02 (stating that
    Mount Soledad “is without question a world-class memorial,
    dedicated to all of those, regardless of race, religion[,] or
    creed, who have served our armed services”). Representative
    Issa similarly stated that the Memorial “was intended to do
    what it does for the vast majority of San Diegans and people
    who come to our fair city. It honors our war veterans for the
    sacrifice they made.” 
    Id.
     at H5424. According to Representa-
    tive Issa, the acquisition was “consistent with how we as
    Americans have honored our war dead and those who have
    given in service to our country” and advanced the “freedom
    for people to observe their God as they chose fit.” 
    Id.
    Representative Bilbray argued for the Act on the grounds
    of religious tolerance and the memorial’s secular historical
    significance. He cited the presence of “many religious sym-
    bols on public lands” in San Diego County and argued that
    “this is not about religion; it is about the tolerance of our heri-
    tage and the memorials to those who have fought for our heri-
    tage across the board.” 
    Id.
     at H5425.
    [5] Finally, although Senator Sessions introduced the Sen-
    ate bill as intended “to preserve the cross that stands at the
    center of Mt. Soledad Veterans Memorial . . . that is under
    attack by the ACLU,” he underlined that the Cross was “part
    of a memorial that has secular monuments also.” 152 Cong.
    Rec. S8364 (daily ed. July 27, 2006). Taken together, the
    floor statements support the text’s demonstration of Con-
    gress’s predominantly secular purpose in acquiring the
    Memorial.
    Jewish War Veterans’s arguments to the contrary do not
    change our view. In particular, the evidence of the role of
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO                      195
    Christian advocacy organizations in the Act’s passage is not
    probative of Congress’s objective. Although such advocacy
    can form part of the context for determining an act’s purpose,
    see, e.g., Epperson, 
    393 U.S. at
    107-09 & n.16, we must take
    into account the often complex, attenuated, and mediated rela-
    tionship between advocacy and legislation. Although the
    advocacy by Christian organizations may have been a contrib-
    uting factor to the Act’s drafting and passage, the record does
    not establish that the sectarian goals of the advocates can be
    reasonably attributed to Congress as a whole. In the end,
    “what is relevant is the legislative purpose of the statute, not
    the possibly religious motives of the legislators who enacted
    the law.” Mergens, 496 U.S. at 249 (emphases omitted).10 In
    crediting congressional purpose, we underscore, however, that
    these congressional statements reflect congressional sentiment
    and are not necessarily reflective of the factual record before
    us. We turn to the actual record to assess the primary effect
    of the Memorial.
    III.   THE EFFECT OF THE MEMORIAL
    [6] The heart of this controversy is the primary effect of
    the Memorial. The question is, under the effects prong of
    Lemon, whether “it would be objectively reasonable for the
    10
    It bears noting that we do not adopt the district court’s inference of a
    secular purpose from the overwhelming majority support for the Act and
    relative absence of debate over its passage. Majority support for a measure
    indicates simply that—majority support. It does not illuminate whether the
    measure approved has a secular or religious purpose. See McCreary, 
    545 U.S. at 884
     (O’Connor, J., concurring) (noting that “we do not count heads
    before enforcing the First Amendment”).
    The district court also cited the heterogeneity of religions in Congress
    as a basis for inferring secular purpose. We cannot credit this speculation
    as a foundation for our decision. Resolution does not rest on a popularity
    contest about the Cross. Importantly, nothing in the record suggests that
    the legislators voted based on their personal religious beliefs. Congress’s
    religious profile, without more, is an insufficient basis to infer its predomi-
    nant purpose.
    196        JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    government action to be construed as sending primarily a
    message of either endorsement or disapproval of religion.”
    Vernon v. City of Los Angeles, 
    27 F.3d 1385
    , 1398 (9th Cir.
    1994). By “endorsement,” we are not concerned with all
    forms of government approval of religion—many of which
    are anodyne—but rather those acts that send the stigmatic
    message to nonadherents “ ‘that they are outsiders, not full
    members of the political community, and an accompanying
    message to adherents that they are insiders, favored members
    . . . .’ ” Santa Fe Indep. Sch. Dist. v. Doe, 
    530 U.S. 290
    , 309-
    10 (2000) (quoting Lynch v. Donnelly, 
    465 U.S. 668
    , 688
    (1984) (O’Connor, J., concurring)).
    Although it is often difficult to pinpoint “a community
    ideal of reasonable behavior” in an area where communities
    are so often divided in their views, see Capitol Square Review
    and Advisory Bd. v. Pinette, 
    515 U.S. 753
    , 780 (1995)
    (O’Connor, J., concurring in part and concurring in the judg-
    ment) (internal quotation marks omitted), we conduct our
    inquiry from the perspective of an “informed and reasonable”
    observer who is “familiar with the history of the government
    practice at issue,” Kreisner v. City of San Diego, 
    1 F.3d 775
    ,
    784 (9th Cir. 1993).
    The analysis required by Van Orden is similar. Under Van
    Orden, we are required to exercise our legal judgment to
    determine whether the Memorial is at odds with the underly-
    ing purposes of the First Amendment’s Religion Clauses. See
    545 U.S. at 700 (Breyer, J., concurring in the judgment).
    Those clauses
    seek to assure the fullest possible scope of religious
    liberty and tolerance for all. They seek to avoid that
    divisiveness based upon religion that promotes social
    conflict . . . . They seek to maintain that separation
    of church and state that has long been critical to the
    peaceful dominion that religion exercises in this
    country . . . .
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO            197
    Id. at 698 (internal citations and quotation marks omitted).
    In our analysis, we must consider fine-grained, factually
    specific features of the Memorial, including the meaning or
    meanings of the Latin cross at the Memorial’s center, the
    Memorial’s history, its secularizing elements, its physical set-
    ting, and the way the Memorial is used. See, e.g., id. at 700-
    02; County of Allegheny v. ACLU Greater Pittsburgh Chap-
    ter, 
    492 U.S. 573
    , 598-602 (1989). The government contends
    that these factors demonstrate that the Memorial’s primary
    effect is patriotic and nationalistic, not religious. We disagree.
    Taking these factors into account and considering the entire
    context of the Memorial, the Memorial today remains a pre-
    dominantly religious symbol. The history and absolute domi-
    nance of the Cross are not mitigated by the belated efforts to
    add less significant secular elements to the Memorial.
    A.   THE LATIN CROSS
    [7] We begin by considering the potential meanings of the
    Latin cross that serves as the centerpiece and most imposing
    element of the Mount Soledad Memorial. We have repeatedly
    recognized that “[t]he Latin cross is the preeminent symbol of
    Christianity.” Buono v. Norton, 
    371 F.3d 543
    , 544-45 (9th
    Cir. 2004) (internal quotation marks omitted); accord Separa-
    tion of Church & State Comm. v. City of Eugene, 
    93 F.3d 617
    ,
    620 (9th Cir. 1996) (per curiam) (“SCSC”); Carpenter v. City
    & County of San Francisco, 
    93 F.3d 627
    , 630 (9th Cir. 1996);
    Ellis, 
    990 F.2d at 1525, 1527
    . The other courts of appeals that
    have considered challenges to Latin crosses have unani-
    mously agreed with our characterization of the cross. See
    Robinson v. City of Edmond, 
    68 F.3d 1226
    , 1232 (10th Cir.
    1995); Murray v. City of Austin, 
    947 F.2d 147
    , 149 (5th Cir.
    1991); Harris v. City of Zion, 
    927 F.2d 1401
    , 1403 (7th Cir.
    1991); ACLU v. City of St. Charles, 
    794 F.2d 265
    , 271 (7th
    Cir. 1986); see also Gonzales v. North Township, 
    4 F.3d 1412
    , 1418 (7th Cir. 1993) (“[W]e are masters of the obvious,
    and we know that the crucifix is a Christian symbol.”); Fried-
    198       JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    man v. Bd. of County Comm’rs, 
    781 F.2d 777
    , 779 (10th Cir.
    1985) (en banc) (recounting testimony concerning the Chris-
    tian nature of the cross); ACLU v. Raburn County Chamber
    of Commerce, Inc., 
    698 F.2d 1098
    , 1110-11 (11th Cir. 1983)
    (same); Jewish War Veterans of the U.S. v. United States, 
    695 F. Supp. 3
    , 12 (D.D.C. 1988) (“Running through the decisions
    of all the federal courts addressing the issue is a single thread:
    that the Latin cross . . . is a readily identifiable symbol of
    Christianity.”).
    [8] The cross is also “exclusively a Christian symbol, and
    not a symbol of any other religion.” Buono, 
    371 F.3d at 545
    .
    Thus, “[t]here is no question that the Latin cross is a symbol
    of Christianity, and that its placement on public land . . . vio-
    lates the Establishment Clause.” SCSC, 93 F.3d at 620; see
    also County of Allegheny, 
    492 U.S. at 661
     (Kennedy, J., dis-
    senting) (stating that “the permanent erection of a large Latin
    cross on the roof of city hall” “would place the government’s
    weight behind an obvious effort to proselytize on behalf of a
    particular religion”); American Atheists, Inc. v. Duncan, 
    616 F.3d 1145
    , 1159-60 (10th Cir. 2010) (“[T]here is little doubt
    that [a state] would violate the Establishment Clause if it
    allowed a private group to place a permanent unadorned
    twelve-foot cross on public property without any contextual
    or historical elements that served to secularize the message
    conveyed by such a display.”).
    This principle that the cross represents Christianity is not
    an absolute one. In certain circumstances, even a quintessen-
    tially sectarian symbol can acquire an alternate, non-religious
    meaning. For example, a red Greek cross on a white back-
    ground is so closely identified with the American Red Cross
    that it has largely shed any religious symbolism. City of St.
    Charles, 
    794 F.2d at 272
    . Notably the Red Cross cross does
    not include the Latin cross’s iconic horizontal arm that is
    shorter than the vertical arm. The cross can also have local-
    ized secular meanings. Because the name of Las Cruces, New
    Mexico means “The Crosses,” “it is hardly startling that [the
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO                  199
    city] would be represented by a seal containing crosses.”
    Weinbaum v. City of Las Cruces, 
    541 F.3d 1017
    , 1035 (10th
    Cir. 2008). In Las Cruces, the cross possesses a local “sym-
    bolism [that] is not religious” but civic. See id.; see also Mur-
    ray, 947 F.2d at 155 (upholding the use of a part of Stephen
    F. Austin’s coat of arms, including a Latin cross, in the insig-
    nia of the City of Austin).11 The cross can even be forced to
    serve non-religious ends by a small group: As Justice Thomas
    has recognized, “[t]he erection of . . . a cross [by the Ku Klux
    Klan] is” “not a Christian [act]” but rather “a political act” of
    “intimidation and harassment.” Pinette, 
    515 U.S. at 771
    (Thomas, J., concurring). Nonetheless, the Latin cross
    remains an iconic Christian symbol.
    B.    CROSSES AS WAR MEMORIALS
    [9] The relevant question in this case is whether, as the dis-
    trict court concluded, the Latin cross has a “broadly-
    understood ancillary meaning as a symbol of military service,
    sacrifice, and death.” Our prior cases counsel caution in
    ascribing this meaning to the cross. We have, in fact, previ-
    ously held that the Mount Soledad Cross contravened the No
    Preference Clause of the California state constitution even
    while recognizing that the Cross is “dedicated to veterans of
    World Wars I & II.” Ellis, 
    990 F.2d at 1527
    . We have simi-
    larly rejected the view that a cross erected on public land in
    Oregon conveyed a secular message simply because it was
    identified as a war memorial. See SCSC, 93 F.3d at 619; id.
    at 625-26 (O’Scannlain, J., concurring); see also Ellis, 
    990 F.2d at 1525
     (“We find unpersuasive the fact that the cross
    was built and dedicated as a memorial to a private individual
    11
    The argument that a cross has a historic connection cannot, of course,
    be treated as “an argument which [can] always ‘trump’ the Establishment
    Clause[ ] because of the undeniable significance of religion and religious
    symbols in the history of many [American] communities.” Robinson, 
    68 F.3d at 1232
    ; see also Zion, 
    927 F.2d at 1414-15
     (holding that even a city
    with “a unique history” “may not honor its history by retaining [a] bla-
    tantly sectarian seal, emblem, and logo”).
    200         JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    . . . . This alone cannot transform the cross into a secular
    memorial.”).
    [10] The reasoning behind our prior decisions is straight-
    forward. “A sectarian war memorial carries an inherently reli-
    gious message and creates an appearance of honoring only
    those servicemen of that particular religion.” Ellis, 
    990 F.2d at 1527
    . Thus, the use of exclusively Christian symbolism in
    a memorial would, as Judge O’Scannlain has put it, “lead
    observers to believe that the City has chosen to honor only
    Christian veterans.” SCSC, 93 F.3d at 626 (O’Scannlain, J.,
    concurring). And insofar as the cross is “not a generic symbol
    of death” but rather “a Christian symbol of death that signi-
    fies or memorializes the death of a Christian,” American
    Atheists, 
    616 F.3d at 1161
    , a reasonable observer would view
    a memorial cross as sectarian in nature.
    Nothing in the record suggests that our reasoning in SCSC
    and Ellis was mistaken or that the Latin cross possesses an
    ancillary meaning as a secular war memorial. The Jewish War
    Veterans have provided two expert declarations from G. Kurt
    Piehler, a professor of history and Director of the Study for
    War and Society at the University of Tennessee. Those decla-
    rations provide extensive evidence that the cross is not com-
    monly used as a symbol to commemorate veterans and fallen
    soldiers in the United States.12 Piehler’s history is not rebutted
    12
    The district court “discounted” Piehler’s statements on the grounds
    that the “declaration circumscribe[d] its focus on an individual element of
    the memorial” and “fail[ed] to fully consider other well-recognized mean-
    ings of the Latin cross.” In “discounting” the expert’s opinion, the district
    court was not gatekeeping but weighing the evidence, indeed inserting evi-
    dence, which is improper on summary judgment. See Sluimer v. Verity,
    Inc., 
    606 F.3d 584
    , 587 (9th Cir. 2010). The district court’s reasons for
    minimizing the weight of the expert’s conclusions were also erroneous and
    not a fair reading of the evidence. The district court simply assumed that
    the Latin cross has an ancillary meaning as a war memorial and leveraged
    that assumption to reject Piehler’s declarations and other contrary evi-
    dence in the record. In doing so, the district court failed to consider the
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO                     201
    by the government’s experts, and the record supports Pie-
    hler’s conclusion that the vast majority of war memorials in
    the United States do not include crosses. We accordingly
    recount Piehler’s history at some length.
    Piehler’s declarations address both the individual commem-
    oration of soldiers in national cemeteries and the large num-
    ber of monuments that stand in tribute to groups of soldiers
    or to the veterans of particular wars. Piehler recounts that the
    first national cemeteries were established after the Civil War
    and were deliberately devoid of religious symbols. Even
    today, the only religious symbol that can be found in Civil
    War cemeteries is the Southern cross of honor, which has
    been allowed since 1930 on headstones built in memory of
    Confederate soldiers. The graves of soldiers who died before
    World War I and are buried in national cemeteries are simi-
    larly marked “only [by] the soldier’s name, his unit, and his
    date of death.”
    Military cemeteries have not, of course, remained entirely
    free of religious symbolism. Most famously, American sol-
    diers who fell in battle during World War I and World War
    II are movingly memorialized with “thousands of small
    crosses in foreign fields” in Europe and the Pacific. Salazar
    v. Buono, 
    130 S. Ct. 1803
    , 1820 (2010) (plurality op.). But
    while the image of row upon row of small white crosses
    amongst the poppies remains an exceedingly powerful one,
    not all soldiers who are memorialized at those foreign battle-
    fields are honored with crosses. Jewish soldiers are instead
    evidence in the light most favorable to Jewish War Veterans before grant-
    ing summary judgment to the government. See 
    id.
     More specifically, the
    district court erroneously branded Piehler’s declarations as conclusory,
    ignoring the detailed listings and historical analysis provided in the record.
    At the same time, the district court accepted without comment the state-
    ments of the government’s expert, Professor Linenthal, who offered a
    number of wholly conclusory statements without historical reference or
    supporting facts.
    202         JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    commemorated with Stars of David. American Atheists, 
    616 F.3d at 1161
    . The cross was a marker of an individual grave,
    not a universal monument to the war dead. And tellingly, the
    universal symbol emanating from those foreign wars is the
    poppy, not the cross.
    Significantly, the cross never became a default headstone in
    military cemeteries in the United States. A visitor to Arlington
    or another national cemetery does not encounter a multitude
    of crosses but rather the “flat upright stone monument[s]” that
    mark the graves of individual soldiers. Symbols of faith are
    carved into the headstones, but those symbols are not
    restricted to crosses and now include everything from a Bahai
    nine-pointed star to a Wiccan pentacle. See 
    id.
     The cross, in
    other words, has never been used to honor all American sol-
    diers in any military cemetery, and it has never been used as
    a default gravestone in any national cemetery in the United
    States.13 Whatever memory some may have of rows of crosses
    as the predominant symbol for honoring veterans is not
    reflected in this record.
    Crosses have also been incorporated only rarely into monu-
    ments commemorating groups of soldiers. Piehler’s declara-
    tions reveal that few war memorials were built in the
    antebellum United States, and those that were constructed
    most frequently took the form of an obelisk. Many more
    monuments—at least 3,500—were built to commemorate the
    13
    The article cited by the district court in support of its view that the
    cross is a generic war memorial reinforces this point. The article discusses
    a memorial display set up by anti-war protestors on the beach at Ocean-
    side, California. The memorial does include a large number of crosses—
    each dedicated to an American soldier who died in Iraq—but those crosses
    represent dead Christian soldiers. As the article cited by the district court
    notes, the display also includes “a handful of Buddhist, Hindu, Muslim
    and Jewish symbols” presumably representing fallen soldiers of those
    faiths. Bruce V. Bigelow, Beach exhibit calls attention to fallen, San
    Diego Union-Tribune Nov. 11, 2007, available at http://www.
    signonsandiego.com/uniontrib/20071111/news_1mc11crosses.html.
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO         203
    Civil War. Only 114 of these 3,500 monuments include some
    kind of cross, however, and the cross is generally “subordi-
    nated to symbols that emphasize American nationalism and
    sacrifice of the fallen.” The memorial to Major General John
    Sedgwick at West Point, for example, includes a cross, but
    that cross is set off by “an eagle perched on a shield” and is
    overshadowed by a large statue of Sedgwick.
    In the late nineteenth and early twentieth centuries, the
    number of crosses used in memorials increased slightly.
    Crosses and other religious symbols nevertheless were “sel-
    dom . . . dominant” and “usually [remained] subordinated to
    a commemoration of American nationalism.” For instance,
    the first chapel dedicated to the Civil War opened in Arling-
    ton National Cemetery in 1920—but the chapel is a small
    basement room annexed to a much larger outdoor auditorium.
    This trend of emphasizing the secular nature of commemo-
    ration continued throughout the twentieth century. Monu-
    ments erected in honor of World War I soldiers remained
    predominantly secular, with statues of doughboys providing
    perhaps the most common theme. Some of these monuments
    were later updated to commemorate World War II veterans as
    well. And many memorials constructed to remember those
    who fought in both world wars are, in fact, not stone monu-
    ments but rather secular “living memorials”—parks, hospitals,
    and other facilities that were built both to honor veterans and
    for daily use. The City of San Diego itself built in 1950, and
    still operates, a War Memorial Auditorium in Balboa Park
    that consists of “3,150 square feet of wood dance floor and a
    stage[ ] plus two smaller classrooms.” No cross or religious
    symbol is part of the memorial. The use of such living memo-
    rials has lately declined in favor of traditional stone monu-
    ments, but newer monuments remain secular in their imagery
    —as illustrated by the most recent additions to the National
    Mall in Washington, D.C., including the memorials to the
    Korean War and World War II.
    204        JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    On the basis of this detailed history, Piehler concludes that
    “the overwhelming majority of war memorials in the United
    States . . . avoid using religious symbols and inscriptions.” In
    particular, he states that “[t]here are few precedents for use of
    the Latin Cross in war memorials on public land,” and “when
    war memorials use religious imagery, [that imagery] generally
    [is] subordinated to symbols and inscriptions that commemo-
    rate American nationhood.”
    None of Piehler’s history is contested by the government.
    The government instead cites to a small number of crosses
    that are incorporated into war memorials, but these examples
    do not create a material issue of fact concerning the meaning
    of the Latin cross. Nor do those few examples fairly lead to
    the conclusion that the cross has become a secularized repre-
    sentation of war memory. Overwhelming evidence shows that
    the cross remains a Christian symbol, not a military symbol.
    Several of the crosses the government references are parts
    of much larger secular or multi-faith complexes. The most
    significant examples are located in Arlington National
    Cemetery—the Canadian Cross of Sacrifice, the Argonne
    Cross, and a cross commemorating the Mexican Civil War.
    None of these crosses is a prominent or predominant feature
    of the cemetery, and the overall image and history of this mil-
    itary burial ground are not founded on religion. All three
    crosses stand among, if not immediately next to, the countless
    headstones of soldiers buried in Arlington and alongside a
    large number of other monuments that do not incorporate reli-
    gious imagery.14 Headstone after headstone, punctuated by the
    eternal flame at President Kennedy’s grave site, represent the
    imagery of Arlington. Much the same can be said for the Irish
    Brigade Monument and the monument to the 142nd Pennsyl-
    vania Infantry. Those monuments, which stand at Gettysburg
    National Military Park, are also surrounded by other statues
    14
    The same is true of the French Cross at Cypress Hill National Ceme-
    tery, which, as its name suggests, commemorates French soldiers.
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO                 205
    and monuments—including over 100 other monuments hon-
    oring Pennsylvania troops alone—that do not feature the cross.15
    The Arlington and Gettysburg crosses are, in other words,
    non-dominant features of a much larger landscape providing
    a “context of history” and memory that overwhelms the sec-
    tarian nature of the crosses themselves. Van Orden, 545 U.S.
    at 702 (Breyer, J., concurring in the judgment). These crosses
    are not comparable to the Mount Soledad Cross, which domi-
    nates the small park of which it is the centerpiece and can be
    seen from miles away.
    We do not question or address the constitutionality of the
    crosses at Arlington Cemetery and Gettysburg. While we con-
    clude on this record that the Latin cross is a sectarian symbol,
    many monuments that include sectarian symbols do not have
    the primary effect of advancing religion. See Part III.C.1,
    infra. Our holding that the presence of the Mount Soledad
    Cross on federal land contravenes the Establishment Clause is
    driven by the history, setting, and appearance of that Cross—
    features that, as we discuss below, sharply distinguish the
    Cross from other war memorials containing religious sym-
    bols.
    Aside from the Arlington and Gettysburg memorials, only
    two other crosses that serve as war memorials in the United
    States are mentioned in the record. One, the Mojave Cross,
    now stands on private land. See Buono, 
    130 S. Ct. at 1811, 1815-21
     (rejecting a challenge to the “statute that would
    transfer [that] cross and the land on which it stands to a pri-
    vate party”). The other cross referenced, the Memorial Peace
    Cross in Bladensburg, Maryland, may or may not stand on
    public land. The record does not inform us.
    Prior decisions inform us of just a handful of other stand-
    alone crosses that have been dedicated as war memorials on
    15
    The Irish Brigade Monument cross is a Celtic cross and may celebrate
    the Irish origin of the soldiers instead of their religion.
    206         JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    public land. These prior decisions do little to establish that the
    cross is a prevalent symbol to commemorate veterans. In two
    of the four cases we found in which crosses were used as war
    memorials, the crosses in question were only designated as
    war memorials after the start of litigation. See, e.g., SCSC, 93
    F.3d at 618 (relating that Latin cross designated as a war
    memorial following rulings by the state courts that the cross
    violated the federal and state constitutions); Greater Houston
    Chapter of the ACLU v. Eckels, 
    589 F. Supp. 222
    , 225, 234-
    35 (S.D. Tex. 1984) (noting that three crosses and a Star of
    David were rededicated as a war memorial after litigation
    commenced). In a third case, the plaintiffs similarly alleged
    that the cross in question was rededicated as a memorial after
    a complaint from a Jewish naval officer that the cross violated
    the doctrine of separation of church and state, while the
    defendants claimed the cross had always been a memorial.
    Jewish War Veterans, 
    695 F. Supp. at 5
    . We could locate only
    one case in which it was undisputed that the cross in question
    was dedicated as a war memorial from the outset. Gonzales,
    
    4 F.3d at 1414, 1421-23
     (holding unconstitutional a crucifix
    in a public park “to honor the heroic deeds of servicemen who
    gave their life in battle”). In light of the multitude of war
    memorials in the United States, however, these few examples
    do not cast doubt on our conclusion and that of the Jewish
    War Veterans’s expert, that the cross has not been a universal,
    or even a common, feature of war memorials.16
    16
    The parties and amici mention several other memorials, none of which
    raises a material question of fact as to whether the cross possesses an
    ancillary meaning as a war memorial. Three of these monuments—the
    Cape Henry Memorial Cross, the statue of Father Junipero Serra in the
    U.S. Capitol, and a statue at Cabrillo National Monument in San Diego—
    are not war memorials but tributes to the memory and achievements of
    particular (Christian) Europeans. Another, the Navy memorial at Fort
    Rosecrans, does not include a cross. Two others stand on property owned
    by Christian churches. Finally, the government and amici name several
    other war memorials without offering a description of the memorials’
    physical characteristics. These passing references provide no basis for any
    comparison with the Cross on Mount Soledad.
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO                    207
    [11] In sum, the uncontested facts are that the cross has
    never been used as a default grave marker for veterans buried
    in the United States, that very few war memorials include
    crosses or other religious imagery, and that even those memo-
    rials containing crosses tend to subordinate the cross to patri-
    otic or other secular symbols. The record contains not a single
    clear example of a memorial cross akin to the Mount Soledad
    Cross. On another record, we might reach a different result,
    but on the basis of the evidence here, we can only conclude
    that the Latin cross does not possess an ancillary meaning as
    a secular or non-sectarian war memorial. 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” or of sacrifice in military service. American Atheists,
    
    616 F.3d at 1162
    .17 It is thus unsurprising that, as the govern-
    ment’s expert admits, “[o]ver the course of time, Mount Sole-
    dad and its cross became a generic Christian site.” The Latin
    cross can, as in Flanders fields, serve as a powerful symbol
    17
    We recognize that one of the government’s experts, Edward T. Linen-
    thal, submitted a declaration opining that “[c]rosses at battle sites, or
    memorials to veterans’ service are not sectarian religious symbols” but
    instead “signify enduring national themes of” American civil religion,
    such as “redemptive blood sacrifice and the virtue of selfless service.”
    Linenthal’s declaration discusses American civil religion, its “[r]itual
    expression[s],” and its symbols in some detail and specifically lists the
    symbols used to celebrate Memorial Day, including “the American flag,
    the meticulous decorating of graves . . . [and] parades of civic groups, high
    school bands, and veterans of the American Legion and Veterans of For-
    eign Wars.” But Linenthal attempts to incorporate crosses into American
    civil religion only by stating that war memorials are part of the civil reli-
    gion and then listing a few of the monuments discussed above. In light of
    the uncontested history submitted by Jewish War Veterans, the few
    memorials cited by Linenthal provide less than a scintilla of evidence to
    support his conclusion that the Latin cross serves as a non-sectarian war
    memorial. Linenthal’s conclusory declaration is insufficient to create an
    issue of material fact on this issue. See, e.g., Nelson v. Pima Cmty. Coll.,
    
    83 F.3d 1075
    , 1081 (9th Cir. 1996) (“The mere existence of a scintilla of
    evidence is not enough to create a genuine issue of material fact in order
    to preclude summary judgment.”) (internal quotation marks omitted).
    208         JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    of death and memorialization, but it remains a sectarian,
    Christian symbol.18
    18
    In Buono, Justice Kennedy, writing for the plurality, suggested that a
    Latin cross may be a generic symbol of memorialization, noting that “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 for-
    gotten.” 
    130 S. Ct. at 1820
    .
    We note that the Court in Buono was not addressing the merits of the
    Establishment Clause challenge to the cross at issue in that case. Nonethe-
    less, we have thoroughly considered Justice Kennedy’s opinion. As we
    have discussed, the record before us does not establish that Latin crosses
    have a well-established secular meaning as universal symbols of memori-
    alization and remembrance. On the record in this appeal, the “thousands
    of small crosses” in foreign battlefields serve as individual memorials to
    the lives of the Christian soldiers whose graves they mark, not as generic
    symbols of death and sacrifice. Even assuming that a Latin cross can con-
    vey a more secular message, however, Justice Kennedy himself states that
    the meaning of the cross cannot be “divorced from its background and
    context.” 
    Id.
     As we discuss below, the background and context of the
    Mount Soledad Cross projects a strongly sectarian message that over-
    whelms any undocumented association with foreign battlefields or other
    secular meanings that the Cross might possess.
    Further, we cannot overlook the fact that the Cross is forty-three feet
    tall. It physically dominates the Memorial, towering over the secular sym-
    bols placed beneath it, and is so large and placed in such a prominent loca-
    tion that it can be seen from miles away. A forty-three foot cross that was
    erected in part to celebrate Christianity, and that serves as the overwhelm-
    ing centerpiece to a memorial is categorically different from the small
    crosses used to mark the graves of individual Christian soldiers. The size
    and prominence of the Cross evokes a message of aggrandizement and
    universalization of religion, and not the message of individual memorial-
    ization and remembrance that is presented by a field of gravestones. See
    American Atheists, 
    616 F.3d at 1162
     (“The massive size of the crosses dis-
    played on Utah’s rights-of-way and public property unmistakably conveys
    a message of endorsement, proselytization, and aggrandizement of religion
    that is far different from the more humble spirit of small roadside cross-
    es.”).
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO        209
    C.     THE MOUNT SOLEDAD MEMORIAL
    Our conclusion that the Latin cross is a Christian religious
    symbol of remembrance or memorialization does not, of
    course, end the matter. The cross on Mount Soledad does not
    stand alone. Instead, it is the overwhelming centerpiece of a
    memorial that now consists of approximately 2,100 plaques,
    six concentric stone walls, twenty-three bollards, and an
    American flag. These other elements are either uniquely secu-
    lar or contain symbols of varying faiths. These changes are,
    however, of recent vintage, and we must gauge the overall
    impact of the Memorial in the context of its history and set-
    ting.
    1.    The Importance of Setting and History
    [12] Secular elements, coupled with the history and physi-
    cal setting of a monument or display, can—but do not always
    —transform sectarian symbols that otherwise would convey
    a message of government endorsement of a particular reli-
    gion. In County of Allegheny, for instance, the Supreme Court
    upheld a holiday display—located outside a public building—
    consisting of an eighteen foot menorah, a forty-five foot
    Christmas tree that the Court deemed a typically secular
    emblem of the holidays, and a sign saluting liberty. See 
    492 U.S. at 616-17
    . Although Justice O’Connor’s controlling
    opinion considered the menorah to be an entirely sectarian
    object, she determined that the display as a whole communi-
    cated a secular message. In the same way that a museum
    might convey the message of art appreciation without endors-
    ing a religion even though individual paintings in the museum
    have religious significance, the holiday display in Allegheny
    conveyed a message of religious pluralism and freedom, even
    though some elements of the display were sectarian. 
    Id. at 635
    (O’Connor, J., concurring in part and concurring in the judg-
    ment).
    By contrast, the Court in Allegheny held that a crèche dis-
    played on the Grand Staircase of the county courthouse vio-
    210       JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    lated the Establishment Clause. The crèche is a Christian
    display, and the crèche in Allegheny “st[ood] alone” on the
    staircase in a “floral frame,” which, “like all good frames, ser-
    ve[d] only to draw one’s attention to the message inside the
    frame.” 
    Id. at 598-99
    . The crèche therefore “convey[ed] a
    message to nonadherents of Christianity that they are not full
    members of the political community, and a corresponding
    message to Christians that they are favored members of the
    political community.” 
    Id. at 626
     (O’Connor, J., concurring in
    part and concurring in the judgment).
    But to complicate things, in the line of Establishment
    Clause jurisprudence, the display of a crèche on public prop-
    erty does not always convey such a message. The Christmas
    display sponsored by the City of Pawtucket, Rhode Island, for
    example, included both a crèche and secular decorations such
    as “a Santa Claus house, reindeer pulling Santa’s sleigh,
    candy-striped poles, a Christmas tree, carolers, [and] cutout
    figures” of animals and a clown. Lynch, 
    465 U.S. at 671
    .
    Given the presence of these secular elements, “[t]he evident
    purpose of including the crèche in the larger display was not
    promotion of the religious content of the crèche but celebra-
    tion of the public holiday through its traditional symbols.” 
    Id. at 691
     (O’Connor, J., concurring).
    Like the crèche, the text of the Ten Commandments con-
    veys an “undeniably . . . religious message.” Van Orden, 
    545 U.S. at 701
     (Breyer, J., concurring in the judgment). When
    placed in the midst of numerous other, non-religious monu-
    ments, however, a display of the Commandments can also
    impart a “secular moral message.” 
    Id.
     As a result, such a dis-
    play is, like the crèche among secular objects, permissible—
    at least when the monument was privately donated and stood
    without legal controversy for forty years. See 
    id. at 701-03
    .
    The question, then, is whether the entirety of the Mount
    Soledad Memorial, when understood against the background
    of its particular history and setting, projects a government
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO          211
    endorsement of Christianity. We conclude it does. In so hold-
    ing, we do not discount the fact that the Cross was dedicated
    as a war memorial, as well as a tribute to God’s promise of
    “everlasting life,” when it was first erected, or that, in more
    recent years, the Memorial has become a site for secular
    events honoring veterans. We do not doubt that the present
    Memorial is intended, at least in part, to honor the sacrifices
    of our nation’s soldiers. This intent, however, is insufficient
    to render the Memorial constitutional. Rather, we must
    inquire into the overall effect of the Memorial, taking into
    consideration its entire context, not simply those elements that
    suggest a secular message. See American Atheists, 
    616 F.3d at 1159
     (“[A] secular purpose is merely one element of the
    larger factual and historical context that we consider in order
    to determine whether [the display] would have an impermissi-
    ble effect on the reasonable observer.”). In conducting this
    inquiry, we learned that the Memorial has a long history of
    religious use and symbolism that is inextricably intertwined
    with its commemorative message. This history, combined
    with the history of La Jolla and the prominence of the Cross
    in the Memorial, leads us to conclude that a reasonable
    observer would perceive the Memorial as projecting a mes-
    sage of religious endorsement, not simply secular memorial-
    ization.
    2.   History of the Mount Soledad Memorial and La
    Jolla
    The Supreme Court has instructed that, when assessing the
    effect of a religious display, we must consider history care-
    fully: “reasonable observers have reasonable memories, and
    [the Court’s] precedents sensibly forbid an observer to ‘turn
    a blind eye to the context in which [the] policy arose.’ ”
    McCreary, 545 U.S. at 866 (quoting Santa Fe Indep. Sch.
    Dist., 
    530 U.S. at 308
    ); accord Pinette, 
    515 U.S. at 780
    (O’Connor, J., concurring in part and concurring in the judg-
    ment) (“[T]he reasonable observer in the endorsement inquiry
    must be deemed aware of the history and context of the com-
    212       JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    munity and forum in which the religious display appears.”);
    Buono, 
    371 F.3d at 550
    . The Memorial’s history stretches
    back more than five decades, and we must consider how the
    Memorial was used and the message it conveyed throughout
    this entire period, and not just in the short time that it has
    stood on federal land. Congress’ acquisition of the Cross in
    2006 did not erase the first fifty-two years of its life, or even
    its history dating back to the beginning of the twentieth cen-
    tury. As the district court noted, when Congress acquired the
    Memorial, it was obligated to “tak[e] history as it [found] it.”
    [13] History would lead the reasonable observer to per-
    ceive a religious message in the Memorial. For most of its
    life, the Memorial has consisted of the Cross alone. The Cross
    is the third in a line of Latin crosses that has stood on Mount
    Soledad since 1913. Mount Soledad was chosen as the site for
    the first cross because it was considered “a fitting place on
    which to erect an emblem of faith.” The earlier crosses were
    not dedicated as war memorials, but served as the site of inter-
    mittent Easter sunrise services. When the Cross was erected
    in 1954, it was dedicated “as a lasting memorial to the dead
    of the first and second World Wars and the Korean conflict.”
    There was no physical indication that the Cross was intended
    as a war memorial, however, until a plaque was added to the
    site in 1989, after litigation over the Cross had begun.
    At the same time, the Cross’s religious nature has been
    widely recognized and promoted since it was first erected.
    When seeking permission from the La Jolla Town Council to
    erect the Cross, the Association explained that its objective
    was to “create a park . . . worthy to be a setting for [this] sym-
    bol of Christianity.” The Association sent out fundraising let-
    ters that called on potential donors to support “this
    manifestation, this symbol, of our faith.” The Association also
    raised funds for the Cross at Easter services and through the
    performance of a Christian play, “Paul of Corinth,” at a local
    church.
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO                     213
    [14] The Cross was dedicated on Easter Sunday in a cere-
    mony that included a Christian religious service. The Cross
    was dedicated not only to fallen soldiers, but also to Jesus
    Christ with the hope that it would be “a symbol in this pleas-
    ant land of Thy great love and sacrifice for all mankind.” The
    program for the ceremony referred to the Cross as “a gleam-
    ing white symbol of Christianity.”
    After the Cross’s dedication in 1954, the Association held
    Easter services at the Memorial annually until at least 2000,
    and other religious ceremonies have been held there since.
    The annual Easter services included readings from the Bible,
    a Christian prayer and benediction, and songs such as “Jesus
    Christ is Risen Today” and “All Hail the Power of Jesus’
    Name.” Until the early 1990s, the program for the annual Eas-
    ter service recounted the Cross’s history and described it as “a
    gleaming white Cross” that serves as a “reminder of God’s
    Promise to man of redemption and everlasting life.” During
    this same time period, the Cross was referred to as the “Easter
    Cross” on local maps.
    [15] In contrast to this ample evidence of religious usage,
    the record of secular events at the Memorial is thin. The Asso-
    ciation represented in its 1998 bid for the land sale that it had
    conducted annual memorial services at the site for forty-six
    years, but the government’s expert historian could point to
    evidence of only two Veterans day ceremonies—one in 1971
    and one in 1973—that occurred prior to 1989. The govern-
    ment provides record evidence of secular events at the Memo-
    rial only from 1996 onward—after the litigation began and
    after the government started attempting to transform the site.
    The Cross’s importance as a religious symbol has been a
    rallying cry for many involved in the litigation surrounding
    the Memorial.19 LiMandri and the Thomas More Law Center
    19
    The district court largely discounted this fact, holding that it was “nei-
    ther logical nor proper” to impute the motivations of the Association and
    214         JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    were integral in devising the plan to designate the land as a
    national veterans’ memorial. They publicly characterized the
    campaign to save the Cross in religious terms—for example,
    as a “spiritual battle.” LiMandri declared that “Christ won the
    war on Calvary. These are just kind of mop-up battles . . . .”
    LiMandri also participated in a fifty-four day prayer move-
    ment in front of the Cross that opened with the singing of
    “Immaculate Mary,” and the prayer of twenty mysteries of the
    rosary.
    Other Christian advocacy groups like the American Family
    Association, the American Center for Law & Justice, and
    Fidelis launched national petition campaigns for the Cross; an
    intercessory prayer movement was held by the Christian
    Defense Counsel outside the White House. Representatives
    from many of these groups participated in a meeting of the
    San Diego City Council to consider whether to accept the fed-
    eral transfer. At the meeting, participants advocated for the
    transfer by invoking the Cross’s importance as a Christian
    symbol, and denouncing their opponents as “Satanists” or
    “hate[rs] of Christianity.” When the Act passed, the Christian
    Coalition “commend[ed] the great efforts . . . in saving this
    historic symbol of Christianity in America.” The starkly reli-
    gious message of the Cross’s supporters would not escape the
    notice of the reasonable observer. See Van Orden, 545 U.S.
    City to the federal government. This reasoning is correct on its own terms,
    see Pleasant Grove City v. Summum, 
    129 S. Ct. 1125
    , 1136 (2009) (distin-
    guishing the intent of private donors and the government’s objectives in
    accepting a monument) and Card, 
    520 F.3d at 1019-20
     (same), but some-
    thing of a red herring. Regardless of the issue of imputed intent, the his-
    tory of the Memorial is relevant to determining its effect on the reasonable
    viewer. Thus, while this evidence may not be relevant to congressional
    purpose, it cannot be ignored in assessing the history and context of the
    Cross, which remains on public land. Again, simply because the Cross was
    transferred from the local government to the federal government does not
    wipe out the history of the site. The transfer did not divest the Cross of
    its Christian symbolism or of the long history and association of the site
    as one of religious significance.
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO           215
    at 703 (Breyer, J., concurring in the judgment) (“[T]he short
    (and stormy) history of the courthouse Commandments’ dis-
    plays [at issue in McCreary] demonstrates the substantially
    religious objectives of those who mounted them, and the
    effect of this readily apparent objective upon those who view
    them.”).
    The wide recognition of the Cross as a religious symbol
    and its long “and stormy” history of religious usage distin-
    guishes the Memorial from the displays in Van Orden and
    Card. The Ten Commandments monuments at issue in those
    cases passed muster in part because they were not used as
    religious objects—they simply adorned the grounds of their
    respective government buildings in the company of other
    monuments. See Van Orden, 
    545 U.S. at 701
     (Breyer, J., con-
    curring in the judgment) (“[T]o determine the message that
    the text [of the Ten Commandments monument] here con-
    veys, we must examine how the text is used.”) (emphasis in
    original). In Van Orden, Justice Breyer emphasized that the
    organization that erected the Ten Commandments monument
    “sought to highlight the Commandments’ role in shaping civic
    morality as part of that organization’s efforts to combat juve-
    nile delinquency.” 
    Id. at 701
    . Given the Monument’s history
    and use in those cases, a reasonable viewer would not have
    inferred from the use of the monuments that their function
    was religious in nature. By contrast, a reasonable observer of
    the Memorial would be aware of the long history of the Cross,
    and would know that it functioned as a holy object, a symbol
    of Christianity, and a place of religious observance. The
    Cross’s religious history heightens, rather than neutralizes, its
    “undeniably . . . religious message.” See 
    id.
     (finding that
    although the text of the Ten Commandments “undeniably has
    a religious message,” that message did not predominate in the
    display because the text was not used in a sectarian manner);
    see also Eckels, 
    589 F. Supp. at 235
     (“[T]hat the effect of the
    symbols’ presence is religious is evidenced by what the site
    has been used for since the [cross was] constructed [including
    216         JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    Easter sunrise services]. There is nothing remotely secular
    about church worship.”).
    [16] The fact that the Memorial also commemorates the
    war dead and serves as a site for secular ceremonies honoring
    veterans cannot overcome the effect of its decades-long reli-
    gious history. See Jewish War Veterans, 
    695 F. Supp. at 5
    , 13-
    14 (holding that religious symbolism of a Latin cross and use
    of cross in religious ceremonies rendered it unconstitutional
    even though it had been dedicated as a war memorial).
    Although the Memorial was labeled a war memorial in 1954,
    for almost three decades—during which it served primarily as
    a site of religious observance—the Memorial consisted of
    only the Cross, with no physical indication of any secular pur-
    pose. Further, recognition of the Memorial as a tribute to vet-
    erans has usually been coupled with Christian ceremonies and
    statements about the Cross’s religious significance. The
    simultaneous invocation of the Cross as a tribute to veterans
    and a “gleaming white symbol of Christianity” lends a dis-
    tinctly sectarian tone to the Memorial’s secular message of
    commemoration. See Carpenter, 
    93 F.3d at 631
     (holding
    cross was not constitutional in part because its secular history
    was “intertwined with its religious symbolism”). The Memo-
    rial’s relatively short history of secular usage does not pre-
    dominate over its religious functions so as to eliminate the
    message of endorsement that the Cross conveys. See Van
    Orden, 
    545 U.S. at 701-03
    .
    [17] La Jolla—where the Memorial is located and serves
    as a prominent landmark—has a history of anti-Semitism that
    reinforces the Memorial’s sectarian effect. The record con-
    tains various documents reporting “long-standing, culturally
    entrenched anti-Semitism” in La Jolla from the 1920s through
    about 1970. The details of this history are well documented
    in a study that is part of the district court record.20 See Mary
    20
    The district court stated that there “is no history of religious discrimi-
    nation” surrounding the Memorial. Presumably the district court was refer-
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO                      217
    Ellen Stratthaus, Flaw in the Jewel: Housing Discrimination
    Against Jews in La Jolla, California, 84 AM. JEWISH HISTORY
    3, 189-219 (1996). The anti-Semitism manifested itself in var-
    ious forms but “most prominently in the housing market.”
    Until the late 1950s, Jews were effectively barred from living
    in La Jolla by a combination of formal and informal housing
    restrictions. La Jolla was forced to abandon these restrictions
    in 1959, in order to persuade the University of California to
    open a new campus—the University of California San Diego.
    The aura of anti-Semitism, however, continued at least
    through the 1960s. An informed observer is far more likely to
    see the Memorial as sending a message of exclusion against
    this backdrop than if it had been erected in a city without this
    pointed history.
    [18] La Jolla’s anti-Semitic history also informs our con-
    clusion that the historical lack of complaint about the Memo-
    rial is not a determinative factor in this case. See Van Orden,
    
    545 U.S. at 702-03
     (Breyer, J., concurring in the judgment).
    In Van Orden, there was little to explain why there had been
    no complaints about the Ten Commandments monument
    other than the hypothesis that people had not been especially
    bothered by it. Here, the Memorial stood in the heart of a
    largely homogenous and exclusionary community. Even the
    government’s expert noted that, for residents of La Jolla,
    being religious meant “by definition, without really thinking
    about it as inclusive or exclusive today, [ ] being Christian.”
    ring to the fact that there is no evidence of non-Christian groups
    requesting to use the Memorial and being denied access on the basis of
    their faith. We agree with the district court that there is no evidence of this
    type of religious discrimination, although we also note that there is hardly
    an extensive record of non-Christian religious events taking place at the
    site. More importantly, there is extensive evidence of religious discrimina-
    tion in La Jolla, unrefuted by the government. Given that the Cross was
    constructed in La Jolla with a distinctly religious purpose, by La Jolla resi-
    dents, during the height of this discriminatory period, we cannot ignore
    that such discrimination is part of the Memorial’s history and context and
    informs the reasonable observer’s views.
    218         JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    The Association’s President noted that residents thought the
    site was primarily religious, although, in his view, it was pri-
    marily a veterans memorial. Under these circumstances, a
    lack of complaints from the minority population is hardly
    reflective of the lack of controversy.
    As it turns out, the record indicates that the first questions
    about the constitutionality of the Memorial arose in 1969 or
    1970, less than a decade after La Jolla real estate was opened
    up to Jews (and other minorities). This sequence of events
    lends support to the argument that the discriminatory housing
    policies of La Jolla may have stifled complaints about the
    Memorial early in its lifetime.21 In any case, the Memorial has
    been the subject of continuous and heated litigation and politi-
    cal controversy for the last twenty years. However one
    assesses the early years, the Cross has long since become a
    flashpoint of secular and religious divisiveness.
    Moreover, the suggestion that the longevity and perma-
    nence of the Cross diminishes its effect has no traction. As the
    Seventh Circuit explained in Gonzales,
    We believe this argument is much like [saying] the
    longer the violation, the less violative it becomes.
    The longer the cross is displayed in the Park, the
    21
    The district court discounted an article reporting the story of early
    questions about the Memorial’s constitutionality. Again, the court
    appeared to be weighing evidence rather than crediting it to the non-
    moving party. In any event, the article documents that “[a]round 1969 or
    1970, the church-state question arose,” and a member of the San Diego
    City Council “took up the cause and researched the legal status of the
    cross,” ultimately determining that it did not violate the Establishment
    Clause. The article goes on to describe certain steps taken to “blunt any
    possible legal challenges” and quotes a La Jolla municipal employee as
    saying “the church-state question has come up.” None of this suggests that
    a debate was raging over the Memorial in the 1960s and ‘70s, but it cer-
    tainly shows that the constitutionality of the Memorial was questioned
    during that period, seriously enough that the Association took action to
    ward off litigation.
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO               219
    more the effect is to memorialize rather than sermon-
    ize. We do not accept this sort of bootstrapping argu-
    ment as a defense to an Establishment Clause
    violation, nor have we found any other case that
    adopted this reasoning.
    
    4 F.3d at 1422
    .
    [19] Overall, a reasonable observer viewing the Memorial
    would be confronted with an initial dedication for religious
    purposes, its long history of religious use, widespread public
    recognition of the Cross as a Christian symbol, and the history
    of religious discrimination in La Jolla. These factors cast a
    long shadow of sectarianism over the Memorial that has not
    been overcome by the fact that it is also dedicated to fallen
    soldiers, or by its comparatively short history of secular
    events.
    3.   The Memorial’s Physical Setting
    [20] The Memorial’s physical setting amplifies the mes-
    sage of endorsement and exclusion projected by its history
    and usage. Despite the recent addition of secular elements, the
    Cross remains the Memorial’s central feature. The Cross
    physically dominates the site. It weighs twenty-four tons,
    stands forty-three feet tall on its base, and is visible from
    many more locations and perspectives than the Memorial’s
    secular elements. The Cross is placed in a separate, fenced off
    box, which highlights it, rather than incorporates it as a natu-
    ral part of the Memorial.
    [21] The engraved plaques and paving stones ring the hill
    on which the Cross sits, placed literally in the Cross’s shadow.22
    22
    In holding that the Memorial’s secular elements predominated, the
    district court emphasized that there were far more secular objects in the
    Memorial than religious ones. Our evaluation of the Memorial’s setting,
    however, cannot rest on the total number of secular versus religious ele-
    220         JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    The relationship of the Cross to the Memorial’s secular fea-
    tures inverts the relationship between religious and secular
    that was presented in County of Allegheny. There, the forty-
    five foot tall secular Christmas tree was “clearly the predomi-
    nant element of the city’s display,” occupying the central
    position in the display and towering over the eighteen foot
    menorah placed to one side. County of Allegheny, 
    492 U.S. at 617
     (opinion of Blackmun, J.). The Supreme Court found that
    the display did not convey a religious message. 
    Id. at 635
    (O’Connor, J., concurring in part and in the judgment). Here,
    just the opposite is true: The way in which the Cross over-
    shadows the Memorial’s secular aspects presents a strongly
    sectarian picture. See 
    id. at 617
     (opinion of Blackmun, J.)
    (explaining that because the Christmas tree overshadowed the
    menorah, it was “sensible to interpret the meaning of the
    menorah in light of the tree, rather than vice versa”); 
    id. at 598-99
     (finding that crèche conveyed religious message
    because “nothing in the context of the display,” including the
    secular flower wreath, “detracts from the crèche’s religious
    message”); see also City of St. Charles, 
    794 F.2d at 267
     (hold-
    ing cross in a multi-faceted Christmas display unconstitu-
    tional and noting that the cross was “an overpowering feature
    of the . . . decorations . . . and . . . there [was] no taller object
    in the city’s Christmas display”). A reasonable observer
    would view the Cross as the primary feature of the Memorial,
    with the secular elements subordinated to it. It is the cross that
    catches the eye at almost any angle, not the memorial plaques.
    From the perspective of drivers on Interstate 5, almost
    directly below, the Cross is the only visible aspect of the
    Memorial, and the secular elements cannot neutralize the
    ments. Our analysis is not a numbers game. Rather, we must examine the
    primary effect of the Memorial’s various elements, to determine whether
    they convey a secular or religious message. Here, the Memorial’s religious
    element—the Cross—is by far its most prominent and dominant feature,
    completely eclipsing the more numerous plaques and bollards sitting
    beneath it.
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO                      221
    appearance of sectarianism. For these drivers, the Cross does
    not so much present itself as a war memorial, but rather as a
    solitary symbol atop a hill. In fact, the Cross is the only ele-
    ment of the Memorial that can be seen from anywhere except
    the site of the Memorial itself—including from Interstate 15,
    which is much farther from Mount Soledad than Interstate 5.
    As we explained in Ellis, the fact that the “Cross stands as
    the focal point of the park, visible to those looking at the hill
    from a substantial distance” contributes to its sectarian effect.
    
    990 F.2d at 1527
    ; see also Buono, 
    371 F.3d at 549
     (highlight-
    ing the fact that cross is visible to vehicles on adjacent road
    from 100 yards away); American Atheists, 
    616 F.3d at 1160
    (finding that secular elements of the highway crosses did not
    diminish the message of endorsement in part because “a
    motorist driving by one of the memorial crosses . . . may not
    notice . . . the biographical information . . . [but] is bound to
    notice the preeminent symbol of Christianity”); Gonzales, 
    4 F.3d at 1414
     (finding cross unconstitutional and noting that it
    “is located in an area . . . which borders a busy intersection
    . . . [and] is visible to virtually anyone who passes through”);
    Raburn County Chamber of Commerce, Inc., 
    698 F.2d at 1101, 1111
     (holding illuminated cross erected at the top of a
    mountain in a local state park unconstitutional and noting that
    it “[shines] over the North Georgia mountains” and “is visible
    for several miles from the major highways”). Although the
    Cross is located miles from downtown, it is located at the
    highest point in La Jolla—a place of particular prominence in
    San Diego.23 See Ellis, 
    990 F.2d at 1527
    .
    23
    The district court held that the distance between the Memorial and
    government buildings weighed against a finding of endorsement, noting
    that the Memorial was “an unlikely place for government indoctrination.”
    The proximity of a religious display to government buildings is not dispo-
    sitive as to constitutionality. We impute to the reasonable observer the
    awareness that the Memorial sits on public land. Whether identified by the
    public as city or federal land, it is well known that the site is a public park.
    222       JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    The centrality and prominence of the Cross in the Memo-
    rial distinguishes the Memorial from other war memorials
    containing crosses. For example, the Argonne Cross and the
    Canadian Cross of Sacrifice at Arlington National Cemetery
    and the Irish Brigade Monument at Gettysburg are located
    among the many secular monuments in those memorials. The
    crosses are on equal footing with these other monuments and
    do not dominate the landscape. The constitutionality of these
    crosses is not before us and we do not question their legiti-
    macy. Their setting, however, is reflective of how crosses are
    incorporated within a larger memorial setting. That a cross
    may be permissible when it is merely one facet of a large, sec-
    ular memorial in which it does not hold a place of prominence
    does not speak to the constitutionality of a cross that is the
    centerpiece of and dominates a memorial, the secular ele-
    ments of which are subordinated to the cross. Faced with such
    a cross, a reasonable observer would perceive a sectarian mes-
    sage of endorsement.
    In addition to overshadowing the Memorial’s secular ele-
    ments, the Cross’s central position within the Memorial gives
    it a symbolic value that intensifies the Memorial’s sectarian
    message. The Memorial’s secular elements—the plaques,
    paving stones and bollards—represent specific individuals or
    groups of veterans, but the Cross, at the center of the Memo-
    rial, is meant to represent all veterans, regardless of their
    faith. The Cross, however, is the “preeminent symbol”—a
    “gleaming white symbol”—of one faith, of Christianity. The
    particular history of this Cross only deepens its religious
    meaning. The Cross is not only a preeminent symbol of Chris-
    tianity, it has been consistently used in a sectarian manner. As
    even the government’s expert noted, “over time . . . Mount
    Soledad and its cross became a . . . Christian site.” The
    Cross’s history casts serious doubt on any argument that it
    was intended as a generic symbol, and not a sectarian one. See
    Raburn County Chamber of Commerce, Inc., 
    698 F.2d at 1110-11
     (finding that dedication of cross at Easter service and
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO                223
    Easter services occurring at the cross were evidence that cross
    was erected for a religious purpose).
    [22] The use of such a distinctively Christian symbol to
    honor all veterans sends a strong message of endorsement and
    exclusion. It suggests that the government is so connected to
    a particular religion that it treats that religion’s symbolism as
    its own, as universal. To many non-Christian veterans, this
    claim of universality is alienating. As one World War II vet-
    eran who fought in both D-Day and the Battle of the Bulge
    put it:
    I don’t know if it is a Christian monument, but it
    does not speak for me. I was under Hitler and in a
    concentration camp and a cross does not represent
    me. The Cross does not represent all veterans and I
    do not know how they can say it represents all veter-
    ans. I do not think a cross can represent Jewish vet-
    erans.
    One of the plaintiffs, Steve Trunk, explained that he was “a
    veteran who served his country during the Vietnam conflict
    [but] I am not a Christian and the memorial sends a very clear
    message to me that the government is honoring Christian war
    veterans and not non Christians.”24 See also City of St.
    Charles, 
    794 F.2d at 273
     (“[T]he story of the death and resur-
    rection of Christ, the story that the cross calls to mind, moves
    only Christians deeply.”).
    By claiming to honor all service members with a symbol
    that is intrinsically connected to a particular religion, the gov-
    ernment sends an implicit message “to nonadherents that they
    are outsiders, not full members of the political community,
    and an accompanying message to adherents that they are
    insiders, favored members of the political community.” See
    24
    We note that not all veterans agree, and that a local Jewish veterans
    group opposes the effort of the national group to challenge the Cross.
    224         JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    Lynch, 
    465 U.S. at 688
     (O’Connor, J., concurring); see also
    American Atheists, 
    616 F.3d at 1160-61
     (“[T]he fact that all
    of the fallen . . . troopers are memorialized with a Christian
    symbol conveys a message that there is some connection
    between [the state] and Christianity. . . . [T]he significant size
    of the cross would only heighten this concern.”); Eckels, 
    589 F. Supp. at 235
     (the primary effect of crosses and Stars of
    David used as war memorials “is to give the impression that
    only Christians and Jews are being honored by the country”).
    This message violates the Establishment Clause.25
    [23] Accordingly, after examining the entirety of the
    Mount Soledad Memorial in context—having considered its
    history, its religious and non-religious uses, its sectarian and
    secular features, the history of war memorials and the domi-
    nance of the Cross—we conclude that the Memorial, pres-
    ently configured and as a whole, primarily conveys a message
    of government endorsement of religion that violates the
    Establishment Clause. This result does not mean that the
    Memorial could not be modified to pass constitutional muster
    nor does it mean that no cross can be part of this veterans’
    memorial. We take no position on those issues.
    We reverse the grant of summary judgment to the govern-
    ment and remand for entry of summary judgment in favor of
    the Jewish War Veterans and for further proceedings consis-
    tent with this opinion.
    REVERSED AND REMANDED.
    25
    The fact that individual veterans can purchase plaques representing
    their own beliefs does not cure the constitutional problem with the Memo-
    rial. The Memorial appears to represent Christian veterans generally, even
    if non-Christian veterans can take steps to be honored specifically. Simply
    purchasing a single small plaque with a Star of David would do little to
    mute the overall effect of the Cross.
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO   225
    APPENDIX A
    226   JEWISH WAR VETERANS v. CITY OF SAN DIEGO
    JEWISH WAR VETERANS v. CITY OF SAN DIEGO   227
    

Document Info

Docket Number: 08-56415

Filed Date: 1/4/2011

Precedential Status: Precedential

Modified Date: 10/14/2015

Authorities (40)

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