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‘What's Wrong with Having a Cross Up?’


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That's sad. We have them all over our roads both in towns and on the highways; just wherever their has been a deadly car accident. I see them not only as a reminder of the person who died there, but also to slow down and be extra cautious, especially if there are several crosses in one intersection or stretch of road.

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Gregory Matthews

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The American Humanist Association pressured Lake Elsinore city to remove the white crosses stating that it was unconstitutional since the highway is government owned.

That is the one of the issues: People can remember their loved ones. People can erect a cross. In fact, people can erect a cross on government property--Crosses are erected at a Federal Veterans cemetery.

But, no one has a right to erect signs of any type on a government highway. All signs on an Interstate must meet standards. People who erect a cross on an Interstate highway do not meet those standards and do not have permission to so erect them. The same is true for other highways that are not Interstate.

Folks, one has no more of a right to erect a sign of any type on a highway not owned by that person than they would have a right to erect that sign on the front lawn of your home.

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Up the street from our house a young woman set up a memorial to her dead daughter. The child was 1 1/2 or so when she died and I am not sure of the circumstances of the death because I didn't read the papers. But why the mom chose that spot to put up her remembrance spot is a mystery to me. There are lots of candles and lights, photos, toys, what-have-you, at the site. I've been wondering how long it will be until the city removes the whole thing.

It is a sensitive issue... These memorials must be as sacred to those who set them up as a gravestone. I can see them as being valuable to the grieving process. But I suppose that a city or county must have the final say. I don't know if I would be happy if some random person chose my property to make a memorial for themselves.

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Gregory Matthews

And the rest of the story (about the memorial showing a soldier kneeling before a cross) is:

1) Judge Wilson ruled against that display on the grounds that it lacked a secular purpose, which would be required in order for the memorial to be built with public funding.

2) A former city council official has admitted that the memorial had been designed to challenge the law. O.K. so it did not have a secular purpose. Rather it was designed in a manner that it did not meet the requirements and was intended to be litigated in court.

3) Melissa Melendez, stated that as America is a Christian nation one has to take a stand at times.

Note: For anyone who wants to read the litigation, see: American Humanist Association v. City of Lake Elsinor

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Gregory Matthews

Here are some important paragraphs in the decision of the judge:

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During the discussion, Council Member Melendez asked the City Attorney, who was present, if the cross would be a legal problem. (Id. 52:22-24). The City Attorney responded that it was an issue and that if he had to give a yes or no answer it would be that the cross could not be on the memorial. (Id. 52-53). Council Member Melendez then stated: "You know what, . . . I think at some point you have to take a stand. I'm sorry. I just think you do. And I'm going to make a . . . motion that we approve this project as is." (Id. 54:15-19). In response to a separate motion to continue the decision on the memorial, Mayor Pro Tem Hickman stated: "I'm not going to sit here and wait for people to denigrate my beliefs, okay. . . . We don't have to change it." (Id. 51:6-11). The Council eventually accepted the motion to continue the vote until after the Committee had an opportunity to reevaluate the design. (Id. 54:24 to 55:4).

* * * * *

A few days before the next City Council meeting, Joyce Hohenadl, a member of the Design Committee, sent an email to other Committee members encouraging them to attend the upcoming City Council meeting. Ms. Hohenadl stated: "I am afraid if we do not attend the Lake Elsinore City Council meeting this coming Tuesday, Nov. 13, at 7:00 p.m., we may lose any religious symbols on the memorial. All people who were attending the last meeting need to attend the city council meeting." (Trial Ex. 20).

At the November 13, 2012 City Council meeting,

* * * * *

Ms. Hohenadl stated that "[o]ur ancestors came to this country with their Christian Judeo faiths. . . . [T]he monument depicts a World War II era solider with gravestones of soldiers featuring both a Christian cross and a Star of David; therefore, it has historical value to it." (Tr. at 60-61). Debbie Rodriguez, a retired Marine, addressed the Council and said that "[t]he cross made [her] proud to serve [her] country, which was founded on Christianity," and that "God is the cross for me. . . . It could be other things to other people." (Id. 62: 21-24). Ms. Rodriguez also stated that "the handful of people who disagree with [having the cross on the memorial] probably never served a day in uniform, never served this country, never served what this country was founded for, never served what we believe in." (Id. 63: 6-10). One member of the community spoke against having the cross on the memorial, which she felt excluded veterans of other faiths. (Id. 63: 16-25). Soon after, however, another Marine veteran stated that "[f]or so few in this city—and I mean few. . . . to think that they're going to have the power and not have been in the military, I don't know where they came from. They must have come from a third-world country and come over here and just want to start stuff." (Id. at 68:17-22). He then concluded "[t]hese people need to go and find a place to live other than America." (Id. 69:18-19).

* * * * * *

After the comments, the Council voted and unanimously approved the memorial's design. The memorial would be paid for by the City in the amount of $46,172.30. (Tisdale Decl., Ex. A, at 4).

And:

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The government's display of an object with religious significance must have a purpose that is "predominantly secular in nature." Trunk, 629 F.3d at 1108 (citing Lemon, 403 U.S. at 612). If objects associated with religion are instead displayed primarily for religious purposes, the government sends the impermissible message that certain religious groups are favored over others, or that religion is favored over nonreligion. See McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844, 860 (2005) ("When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality.").

When a symbol generally associated with religion is included as part of a larger display, the relevant question is whether the government had a predominantly secular purpose for including the religious symbol within the context of the larger setting. For example, in Lynch the Supreme Court analyzed the constitutionality of a city's holiday display, which included a Santa Claus house, reindeer pulling Santa's sleigh, a Christmas tree, and a crèche. Lynch v. Donnelly, 465 U.S. 668, 681 (1984). The Court found that there was a secular purpose for the display of the religiously associated crèche. Id. at 680-61. The crèche depicted the origins of Christmas, which was a legitimate secular purpose within the scope of the larger display that sought to celebrate the history of an event "long recognized as a National Holiday." Id. at 680-81.

* * * * *

In both Lynch and Allegheny, the religious symbols not only served a secular purpose, but they also served a secular purpose that could not easily be accomplished without a religious symbol. The origins of Christmas are undoubtedly Christian, and thus the use of a Christian symbol to represent that history was legitimate in Lynch. Similarly, in Allegheny, it would not be easy to communicate a message of religious pluralism without using religious symbols like the menorah. In contrast, courts have held that the use of religious symbols where nonreligious symbols will suffice generally evinces a religious purpose. See Greater Houston Chapter of Am. Civil Liberties Union v. Eckels, 589 F. Supp. 222, 234 (S.D. Tex. 1984) (holding that a city's use of cross and Star of David statues in a veterans' memorial was for a religious purpose in part because the memorial could have served its intended purpose of honoring veterans without the use of religious symbolism); Jewish War Veterans of U.S. v. United States, 695 F. Supp. 3, 14 (D.D.C. 1988) ("The use of a cross as a memorial to fallen or missing servicemen is a use of what to some is a religious symbol where a nonreligious one likely would have done as well.").

When the government uses religious symbols or requires religious instruction, the Supreme Court has placed the burden on the government to articulate a predominantly secular purpose for using the symbols under Lemon. See McCreary, 545 U.S. at 870-72 (holding that the government failed to articulate a legitimate secular purpose for the display of the Ten Commandments in county courthouses); Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (noting that the government had "identified no clear secular purpose" for a state law that forbid public schools from teaching evolution unless accompanied by instruction of "creation science"); Stone v. Graham, 449 U.S. 39, 41-42 (1980) (holding that the government had failed to provide a legitimate secular purpose for displaying the Ten Commandments in public classrooms).

In the instant case, there is no evidence as to why the City of Lake Elsinore initially chose to include a Latin cross on their veterans' memorial. Although the cross serves as a tombstone, a religious symbol is not necessary to mark a grave, and like Eckels and Jewish War Veterans, the use of a religious symbol where one is not necessary evidences a religious purpose. However, even assuming Lake Elsinore originally included the cross for a secular purpose, the Court must examine whether the relevant government decision makers abandoned their neutrality in adopting the cross design, and acted with the "intent of promoting a particular point of view in religious matters." Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335 (1987); see Harris v. City of Zion, Lake Cnty., Ill., 927 F.2d 1401, 1411 (7th Cir. 1991) (holding that a city council did not abandon its neutrality when it adopted a school child's design for the city seal, which included a cross, because the evidence showed that the city council adopted the design because of its appealing art work, and there was no evidence to suggest that the city sought to encourage Christianity with the adoption and use of the seal).

Here, there is strong evidence that at the October 23, 2012 Lake Elsinore City Council meeting, multiple City Council members expressed a predominantly religious interest in keeping the cross on the memorial. Responding to members of the community who expressed legal concerns about including the cross, Mayor Pro Tem Hickman said "I feel sorry for us that we as Christians cannot show the cross because of the First Amendment. Okay. It really is a shame that our society, to me, is leaning that way." (Id. 43:19-44:1). Later in resisting a motion to continue a vote on the memorial until other designs were considered, Mr. Hickman added: "I'm not going to sit here and wait for people to denigrate my beliefs, okay. . . . Let them just present their designs. We don't have to change it." (Id. 51:6-8). Council Member Melendez added that "it is a sad reflection on our society when as a Christian nation, one of the principles upon which we were founded is something that we are forced to hide." (Id. 43:19-44:1; 45:9-20). And in response to the motion to continue the vote, she later stated: "You know what . . . I think at some point you have to take a stand. I'm sorry. I just think you do. And I'm going to make a substitute motion that we approve this project as is and where it is." (Id. 54:15-19).

At the November 13, 2012 council meeting, Council Member Magee also expressed an intent to keep the cross because of its religious symbolism. He stated immediately prior to casting his vote to approve the memorial that what "got to [him] the most" was the public testimony of Deborah Rodriguez, who spoke about "her cross and her time served [in the military] and her son." (Transcript, 83: 7-10). Ms. Rodriguez had told the Council that "the cross" made her proud to serve her country, "which was founded on Christianity," and that "God is the cross for me. It could be other things to other people." (Id. at 20-24).

"Public comments of [a display's] sponsors" is important evidence to consider in assessing government purpose. See McCreary, 545 U.S. at 862 (citing Edwards v. Aguillard, 482 U.S. 578, 594-95 (1987)). And similar public statements of religious purpose by government sponsors have been held to show an endorsement of religion in violation of the Establishment Clause. See Green v. Haskell Cnty. Bd. Of Comm'rs, 568 F.3d 784, 801 (10th Cir. 2009). In Green, the county board approved a monument featuring the Ten Commandments and the Mayflower Compact. Id. at 790. Although the board members did not originally state why they approved the monument, two of the three board members later defended the monument for religious reasons, making statements such as: "That's what we're trying to live by, that right there." "The good Lord died for me. I can stand for him. And I'm going to." "I'm a Christian and I believe in this. I think it's a benefit to the community." "I won't say that we won't take it down, but it will be after the fight." Id. at 801. The court in Green held that the reasonable observer would have been aware of these comments and would have concluded that the county board's enactment of the monument reflected an endorsement of religion.

Here, as in Green, the public comments show that for a majority of the five-person Lake Elsinore City Council, the purpose for including the cross on the memorial was to symbolize their religion and the Country's status as a Christian nation. Such comments reflect an abandonment of government neutrality in adopting the cross design, and an "intent of promoting a particular point of view in religious matters." Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335 (1987).

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