Wednesday, October 19, 2011

Trunk v. City of San Diego, 660 F.3d 1091 (9th Cir.2011) dissenting from 629 F.3d 1099 (9th Cir. 2011)

The animus to religion by the majority of 9th Circuit judges is evident from their decision in Trunk v. City of San Diego, et al.).  Almost one hundred years ago private parties erected the Mt. Soledad cross in San Diego County to memorialize men who had died in war.  As time passed, approximately 2000 crosses were added to the memorial.  Ultimately the City of San Diego transferred the property to the federal government. At no time in the last 76 years has the location  ever served as the site for religious services.  But apparently some people were offended at this alleged symbol of Christianity and sued to demolish the cross.
In a decision that ignores Supreme Court precedent established in Salazar v. Buono, 130 S.Ct. 183 ( 2010, reversing the 9th Circuit), a majority of 9th Circuit judges held the memorial violates the Establishment Clause  of the First Amendment.

The dissenting judges in Trunk cite two Supreme Court cases directly in conflict with this decision.  The leading case of Van Orden v. Perry, 545 U.S. 677 (2005) upheld the display of the Ten Commandments on pubic property, and concluded the courts must evaluate the use of the display, its context, and the history of the monument.  The undisputed evidence in Trunk established the monument served as a memorial, not the governmental endorsement of religion. The 9th Circuit majority ignored the history of the monument, its use, the absence of challenge in almost a century, and unrelated to any religious practices.

The majority decision  also ignores Lynch v. Donnelley, 465 U.S. 668 (1984), a Supreme Court decision approving display of a creche on public property at Christmas: "Of course the crèche is identified with one religious faith but no more so than the examples we have set out from prior cases in which we found no conflict with the Establishment Clause.  It would be ironic, however, if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for two centuries, would so “taint” the City's exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol—the crèche—at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and Legislatures open sessions with prayers by paid chaplains - would be a stilted over-reaction contrary to our history and to our holdings. If the presence of the crèche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution."
The majority decision in Trunk is an "over -reaction." If a creche displayed on public property at Christmas does not violate the Establishment Clause, an unadorned simple cross on a mountain signifying respect for those who sacrificed their lives in war does not either.

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