I’m always struck by the amazingly wide range of issues that municipal attorneys get to deal with. It’s what keeps the practice continually fresh and interesting. This was brought to mind recently when the U.S. Supreme Court issued a ruling in late April regarding a cross on Federal land on the Mojave National Preserve. The cross had been put in place in 1934 by members of the Veterans of Foreign Wars (VFW), to honor American soldiers who had died in World War I. The ACLU had brought suit on behalf of the Plaintiff, Frank Bruno, claiming that using a religious symbol as a national war monument was offensive and violated the separation of church and state. The lower courts, up through the 9th Circuit Court of Appeals had agreed, ordering the removal of the cross. In a narrow 5-4 ruling in the case, Salazar v Bruno, (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=08-472) a greatly divided U.S. Supreme Court sent the case back to the lower court, saying it used the wrong standard. In the lead opinion in the case Justice Kennedy stated that “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm…”
I’ve taken an interest in cases involving crosses because years ago I was attorney for a city that had a cross issue. In Lompoc, there is a large cross that is prominently displayed on a hill in the City. It had been constructed in 1912 to commemorate the 125th anniversary of the founding of the La Purisima Mission and the 100th anniversary of its destruction by an earthquake. It had always been assumed that it was on City owned property. One day I received a letter from a local atheist group demanding that the City take it down. After some research we concluded it was on land owned by a local contractor whose family had been in town since the late 1800s. I wrote a letter to the atheist group, telling them it wasn’t on our property, and adding something to the effect “by the way, did you know about the wonderful history associated with the cross…” That did the trick and the issue went away.
Other crosses in California, however, have been the source of great controversy. In the San Diego area there is the infamous case of the Mt. Soledad cross. It would take pages to detail the legal battles over that cross, which has been the subject of over 20 years of litigation, and includes maneuvering to save the cross by selling it to a private group (a move struck down by the 9th Circuit Court of Appeals), designation under federal law as a national veteran’s memorial, and two ballot measures. The latest 9th Circuit case was argued just this last December and recent articles have speculated that the new Supreme Court ruling will make a difference in the newest pending Mt. Soledad case.
Several years ago the City of Ventura was also embroiled in controversy over a cross. That cross was located in a City park and the controversy that erupted was defused by the City selling the cross and an acre of land surrounding it to the highest bidder, which turned out to be a local group, San Buenaventura Heritage, Inc, which now maintains the cross. No litigation was ever brought, but it was threatened, which is what led to the sale of the land.
Of course, cross issues are just one small category of the type of religious topics that can confront a municipal attorney. For example, issues involving invocations at the start of meetings and religious displays in parks during holidays are not unusual and can be tricky and controversial.
As the narrow ruling in the recent Supreme Court case suggests, as well as the more than 20 year history of litigation in the Mt. Soledad cross case, the law in these matters is usually not as clear or easy as the public agency’s attorney might like. At the same time, it’s being able to deal with fascinating issues with constitutional dimensions like these that let me tell folks that it’s never boring when you’re a municipal attorney…
David H. Hirsch