An Artifact or a Memorial: The Latin Cross and the Establishment Clause

Abstract

This comment proposes a new, unified approach to practically apply the Establishment Clause to public displays of religious symbols. The use of a particularized set of factors will lead to more consistent and coherent court decisions. The proposed method is considered and applied to the integration of the Latin cross in war memorials, with a focus on the Mount Soledad Memorial in San Diego. Recently, the Second Circuit issued an opinion holding that the Cross at Ground Zero could remain where it stands in the 9/11 museum, and in doing so, the court interpreted the religious symbol in a different way than the Ninth Circuit had regarding the Mount Soledad cross. The use of the new, unified approach will at least partially relieve courts of this surmountable task of interpreting what exactly a cross means. The test will allow courts to determine whether the cross is related to the display in a way that allows the religious symbol to stand as an integrated part of a secular display. The proposed approach considers whether (1) a state actor erected the symbol; (2) the symbol had a legitimate secular purpose; (3) the history and context of the symbol supported the secular purpose; (4) the government’s use of the symbol is coercive; and (4) excessive entanglement of government and religion. These factors are designed to allow lower courts to continue using a fact-intensive analysis, but the application of these factors clarifies the analysis and the results. Most likely, the Supreme Court will chose to clarify the Establishment Clause jurisprudence, and this proposed approach incorporates pieces of each of the four tests — the Lemon Test, the Endorsement Test, the Coercion Test, and the Van Orden Test — to clarify the convoluted doctrine.