No. 13-1061

Wilson-Epes Printing Co., Inc. – (202) 789-0096 – Washington, D.C. 20002

IN THE

Supreme Court of the United States ————

MOUNT SOLEDAD MEMORIAL ASSOCIATION, Petitioner,

v.

STEVE TRUNK, ET AL., Respondents.

———— On Petition for Writ of Certiorari Before

Judgment to the United States Court of Appeals for the Ninth Circuit

————

BRIEF OF AMICUS CURIAE THE AMERICAN LEGION SUPPORTING PETITIONER

————

EDWIN MEESE III 75TH U.S. ATTORNEY GENERAL 214 Massachusetts Ave., N.E. Washington, D.C. 20002 (202) 608-6180 PHILIP B. ONDERDONK NATIONAL JUDGE ADVOCATE THE AMERICAN LEGION 700 Pennsylvania St. Indianapolis, Indiana 46204 (317) 630-1200

AARON M. STREETT Counsel of Record EDMUND G. LACOUR JR. BAKER BOTTS L.L.P. 910 Louisiana St. Houston, Texas 77002 (713) 229-1234 aaron.streett@bakerbotts.com RYAN L. BANGERT BAKER BOTTS L.L.P. 2001 Ross Ave., Ste. 600 Dallas, Texas 75201 (214) 953-6500

Counsel for Amicus Curiae The American Legion

(i)

QUESTION PRESENTED

Whether the Mt. Soledad Veterans Memorial violates the Establishment Clause because it contains a memorial cross among numerous other religious and secular sym-bols of patriotism and sacrifice.

ii

TABLE OF CONTENTS

Page Question Presented ..................................................... i Interest of Amicus Curiae ......................................... 1 Summary of Argument ............................................... 3 Argument ...................................................................... 4

I. Monuments In The Form Of A Cross Have Long Been Used To Honor Amer-ican Soldiers Who Fought And Died During World War I, World War II, And The Korean War .................................... 4

A. The cross has long been used as a battlefield marker and memorial ............ 5

B. This battlefield history is reflected in numerous memorials to fallen soldiers, including the cross at Mount Soledad ........................................... 8

II. Congress Recognized The Nonsectarian Nature Of The Mt. Soledad Veterans Memorial And The Military’s Broader Use Of The Cross To Honor The Fallen .... 9

III. This Case Presents A Substantial And Recurring Issue Of National Im-portance That Warrants Certiorari Be-fore Judgment Because Time Is of The Essence ............................................................ 13

IV. The Court Of Appeals’ Decision Threatens The Widespread Use Of The Cross By The United States Military To Recog-nize Valor And Memorialize Sacrifice ......... 16

Conclusion ..................................................................... 21

(iii)

TABLE OF AUTHORITIES

Page

CASES Am. Atheists, Inc. v. Davenport,

637 F.3d 1095 (10th Cir. 2010) ......................... 15, 16 Ashcroft v. ACLU,

542 U.S. 656 (2004) .................................................. 11 Blodgett v. Holden,

275 U.S. 142 (1927) .................................................. 11 Buono v. Norton,

371 F.3d 543 (9th Cir. 2004) ................................... 16 Capitol Square Review & Advisory Bd. v.

Pinette, 515 U.S. 753 (1995) .................................................. 19

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ...................................................... 13

Gonzales v. Carhart, 550 U.S. 124 (2007) .................................................. 11

Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ...................................................... 11

Lynch v. Donnelly, 465 U.S. 668 (1984) .................................................. 19

Rostker v. Goldberg, 453 U.S. 57 (1981) .................................................... 11

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) .................................................. 11

Salazar v. Buono, 559 U.S. 700 (2010) .......................... 12, 17, 18, 20, 21

San Diegans For Mt. Soledad Nat’l War Mem’l v. Paulson, 548 U.S. 1301 (2006) ................................................ 13

TABLE OF AUTHORITIES—Continued

Page

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Separation of Church & State Comm. v. City of Eugene, 93 F.3d 617 (9th Cir. 1996) ..................................... 19

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

United States v. Morrison, 529 U.S. 598 (2000) .................................................. 11

United States v. Stevens, 559 U.S. 460 (2010) .................................................. 11

United States v. Williams, 553 U.S. 285 (2008) .................................................. 11

Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 132 S. Ct. 12 (2011) ............................................ 15, 16

Van Orden v. Perry, 545 U.S. 677 (2005) ...................................... 12, 20, 21

FEDERAL STATUTES Act of Aug. 14, 2006, Pub. L. No. 109-272, 120

Stat. 770 (16 U.S.C. 431 note) ................ 9, 10, 11, 20 § 1(1), 120 Stat. 770 .................................................... 9 § 1(2), 120 Stat. 770 .................................................. 10 § 1(3), 120 Stat. 770 .................................................. 10 § 1(4), 120 Stat. 770 ............................................ 10, 20 § 1(5), 120 Stat. 770 .................................................. 10 § 1(6), 120 Stat. 770 .................................................. 10 § 1(7), 120 Stat. 770 .................................................. 10 § 2(a), 120 Stat. 770 .............................................. 9, 10

TABLE OF AUTHORITIES—Continued

Page

(v)

Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, div. J, 118 Stat. 3346 (16 U.S.C. 431 note) ................................................................... 10

§ 116(a), 118 Stat. 3346 ........................................... 10

LEGISLATIVE MATERIALS 152 Cong. Rec. H5422–H5426 (daily ed.

July 19, 2006) ................................................ 12, 19, 20 152 Cong. Rec. S8364–S8365 (daily ed.

July 27, 2006) ...................................................... 11, 12 152 Cong. Rec. S8550 (daily ed. Aug. 1, 2006) ........... 12

BOOKS James Edward Peters, Arlington National

Cemetery: Shrine to America’s Heroes (2000) ........................................................................... 9

Michael Sledge, Soldier Dead: How We Recover, Identify, Bury, and Honor Our Military Fallen (2007) ............................................................... 6

ARTICLES AND WEBSITES Arlington National Cemetery, Argonne Cross,

http://www.arlington cemetery.net/argonne-cross.htm ..................................................................... 8

Arlington National Cemetery, Canadian Cross of Sacrifice, http://www.arlington cemetery.mil/VisitorInformation/MonumentMemorials/CanadianCross.aspx .............................. 9

Arlington National Cemetery, Canadian Cross of Sacrifice, http://www.arlingtoncemetery. net/canadian-cross.htm ............................................. 9

TABLE OF AUTHORITIES—Continued

Page

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Arlington National Cemetery, Tomb of the Unknown Soldier, http://www.arlington cemetery.mil/VisitorInformation/TombofUnknowns.aspx .................................................................. 9

Department of Veterans Affairs, America’s Wars, May 2010, http://www.kwva.org/ pdfs/americas_wars_1005.pdf ................................ 14

Department of Veterans Affairs, America’s Wars, May 2013, http://www.va.gov/opa/ publications/factsheets/fs_americas_wars.pdf .... 14

Germany Awards Military Cross of Courage, Spiegel Online (July 6, 2009) http://www. spiegel.de/international/germany/ 0,1518,634601,00.html. ............................................. 17

Ministry of Defence, Military Cross (MC), http://www.mod.uk/DefenceInternet/DefenceFor/Veterans/Medals/MilitaryCrossmc.htm ...... 17

Ministry of Defence, Victoria Cross, http://www.mod.uk/DefenceInternet/DefenceFor/Veterans/Medals/VictoriaCross.htm ........... 17

National World War II Museum, WWII Veterans Statistics, http://www.nationalww2 museum.org/honor/wwii-veterans-statistics.html ........................................................... 14

Secretaria de la Defensa Nacional, Cruz de Guerra, http://www.sedena.gob.mx /index.php/conoce-la-sedena/antecedentes-historicos/sedena/heraldica-militar/ condecoracion/condecoraciones /312-cruz-de-guerra ........................................................................ 18

TABLE OF AUTHORITIES—Continued

Page

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The American Battle Monuments Commission, Normandy American Cemetery and Memorial, http://www.abmc.gov/ publications/CemeteryBooklets/Normandy_Booklet.pdf ................................................................. 7

The British Monarchy, Union Jack, http://www.royal.gov.uk /MonarchUK/ Symbols/UnionJack.aspx . ...................................... 19

The Institute of Heraldry, Croix de Guerre, France, http://www.tioh.hqda.pentagon .mil/Catalog/Heraldry.aspx?HeraldryId=15492&CategoryId=9399&grp=12&menu=Decorations%20and%20Medals&ps=24&p=0 .......... 18

The Institute of Heraldry, Distinguished Flying Cross, http://www.tioh.hqda.pentagon. mil/Catalog/Heraldry.aspx?HeraldryId=15249&CategoryId=3&grp=4&menu=Decorations%20and%20Medals&ps=24&p=0 .................. 17

The Institute of Heraldry, Distinguished Service Cross, http://www.tioh.hqda. pentagon.mil/Catalog/Heraldry.aspx?HeraldryId=15238&CategoryId=3&grp=4&menu=Decorations%20and%20Medals&ps=24&p=0 ............................................................................... 17

LTC John C. Cook, Q.M.C., Graves Registration in the Korean Conflict, The Quartermaster Review, March-April 1953, http://www. qmmuseum.lee.army.mil/korea/gr_ korea.htm ................................................................ 7, 8

TABLE OF AUTHORITIES—Continued

Page

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Richard Goldstein, Frank Buckles, Last World War I Doughboy, Is Dead at 110, N.Y. Times, Feb. 28, 2011, http://www.nytimes.com/2011/03/01/us/01buckles.html .................................................................... 14

Lynn Harold Hahn, Veteran’s Memoirs, http://www.koreanwar-educator.org/ memoirs/hahn/#SearchRecovery. .......................... 7

Colonel Frederick W. Van Duyne, Q. M. C., Erection of Permanent Headstones in the American Military Cemeteries in Europe, The Quartermaster Review, January-February 1930, http://www.qmfound. com/stone.htm ........................................................ 5, 6

Major William R. White, Q. M. C., Our Soldier Dead, The Quartermaster Review, May-June 1930, http://www.qmfound.com/soldier _dead.htm ................................................................... 5

WW2 US Medical Research Centre, 607th Quartermaster Graves Registration Company, Unit History, http://www.med-dept.com/unit_histories/607_qm_gr_co.php ...... 6, 7

IN THE

Supreme Court of the United States ————

NO. 13-1061 ————

MOUNT SOLEDAD MEMORIAL ASSOCIATION, Petitioner,

v.

STEVE TRUNK, ET AL., Respondents.

———— On Petition for Writ of Certiorari Before

Judgment to the United States Court of Appeals for the Ninth Circuit

———— BRIEF OF AMICUS CURIAE THE AMERICAN

LEGION SUPPORTING PETITIONER ————

INTEREST OF AMICUS CURIAE1 The American Legion was chartered by Congress in

1919. It is the Nation’s largest veterans service organiza-tion, representing approximately 2.4 million members—plus an Auxiliary of almost 1 million members—in nearly 14,000 American Legion Posts throughout the United States, its territories and 20 foreign countries, including 1 Pursuant to this Court’s Rule 37.6, amicus affirms that no counsel for a party authored this brief in whole or in part, that no such coun-sel or party made a monetary contribution intended to fund the preparation or submission of this brief, and that no person other than amicus and its counsel made such a monetary contribution. Pursuant to this Court’s Rule 37.2, counsel of record for petitioner and respondents were timely notified of amicus’s intent to file this brief. Petitioner has filed a blanket consent with this Court. Con-sents from counsel for all other parties have been filed with this brief.

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England, Australia, Germany, Japan, Mexico, and the Philippines. Since its inception, The American Legion has maintained an ongoing commitment to veterans and their families. The Legion helps military veterans sur-vive economic hardship and secure government benefits. It drafted and obtained passage of the first G.I. Bill, and its members were among the primary contributors to the Vietnam Veterans Memorial. It works to promote social stability and well-being for those who have honorably served our Nation’s common defense. And it strives to ensure that those veterans who have sacrificed their lives for our country are properly remembered in local, state, and national veterans memorials.

As part of this mission, the La Jolla American Legion Post 275 founded the Mt. Soledad Monument Association in 1952 to complete its work of creating and dedicating a memorial to the fallen veterans of World War I, World War II, and the Korean War. In 2006, the American Le-gion advocated in favor of Congressional action to ac-quire and preserve the Mt. Soledad Veterans Memorial as a memorial to America’s veterans of all wars. A reso-lution of this case is a matter of great concern to The American Legion, particularly to its approximately 610,000 members who served in World War II and the Korean War and deserve to see an expeditious end to this dispute. The destruction of the Memorial cross now or-dered by the district court would be an unconscionable affront to veterans and their families and would threaten the continued survival of other veterans memorials—many built or maintained by members of The American Legion—that incorporate religious iconography as sym-bols of military death, honor and sacrifice.

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SUMMARY OF ARGUMENT Like countless grave markers and memorials to veter-

ans throughout our Nation and overseas, and like the simple wooden crosses that first memorialized the final sacrifice made by thousands of soldiers, the Mt. Soledad Veterans Memorial uses a cross to reflect the respect and gratitude due our honored dead. Historical records es-tablish that the military has long used the cross as a non-sectarian symbol of sacrifice. Crosses routinely were used as makeshift burial markers for soldiers who died during the battles of World Wars I and II and the Kore-an War. Across the battlefields of Europe and the Pacif-ic, two wooden beams would identify and dignify the temporary graves of thousands of soldiers. As each war came to its close, those touched by the conflicts saw fit to continue to use the symbol of the cross in tens of thou-sands of headstones and in larger memorials, including the Memorial at Mount Soledad.

The historical meaning of the Mt. Soledad Veterans Memorial cannot be understood apart from this broader history of the cross as a nonsectarian sign of military re-membrance. When placed in historical context alongside the tens of thousands of crosses that have commemorat-ed our fallen for more than a century, the nature of the Memorial is clear. From the time it was erected—less than a year after the Korean War armistice was signed— through today, the Memorial has served as a nonsectari-an symbol of sacrifice honoring all our country’s fallen heroes.

The court of appeals discounted the cross’s history as a symbol of military sacrifice and effectively ruled that a sixty-year-old piece of that history must be cut down and dragged away. By erroneously ascribing a divisive mes-sage to the Memorial, the court of appeals promoted the kind of social conflict the Establishment Clause seeks to avoid. As long as the decision stands, it will endanger

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hundreds or even thousands of similar monuments and memorials by imputing a sectarian meaning to a univer-sally recognized symbol of military death and sacrifice.

While Congress has codified the Memorial’s uniquely rich history as a national memorial, the Memorial’s use of a cross to honor our fallen soldiers is by no means ex-traordinary. The memorial cross at Mount Soledad is one of tens of thousands of memorial crosses—from Flanders Field and Normandy to Gettysburg and Arling-ton—that have served that solemn end. These memorials stand to ensure that we never forget those who gave all for our country. The Court should recognize this history, lest it be forgotten.

The Legion understands that this Court rarely grants certiorari before the court of appeals has entered judg-ment. Such review is warranted here for the reasons given by petitioner. And this is a unique circumstance for an additional, crucial reason. Hundreds of World War II and Korean War veterans and their spouses—the very persons honored and touched by the Memorial—are dying every single day. Many of these are Legion mem-bers. The Legion and its members are thus intensely in-terested in obtaining timely resolution of this issue, be-fore hundreds of thousands more honorees pass away during a lengthy and almost certainly fruitless Ninth Circuit appellate process.

ARGUMENT I. Monuments In The Form Of A Cross Have Long

Been Used To Honor American Soldiers Who Fought And Died During World War I, World War II, And The Korean War

To assess the message the Mt. Soledad Veterans Me-morial conveys, the Court must consider the purpose the cross served on the battlefields of World War I, World War II, and the Korean War and in the memorials that have honored the brave soldiers who gave their lives in

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those conflicts. The terrors of modern warfare and the large-scale loss of life that resulted from those conflicts created a new need to bury and commemorate fallen American soldiers overseas. A simple wooden cross was commonly used to hastily identify and solemnize the place where a soldier had been laid to rest—oftentimes the very battlefield where the soldier had fallen. As the cross became widely used overseas as a symbol honoring our fallen soldiers, it became a more common symbol of that sacrifice in memorials built back home. The Mt. Soledad Veterans Memorial, built less than a year after the Korean Armistice Agreement was signed, was one of these memorials created to honor all soldiers who gave their lives for their country. A proper understanding of the history of these memorials should guide the Court.

A. The cross has long been used as a battlefield marker and memorial

During World War I, the families of many fallen sol-diers began to prefer that their loved ones remain over-seas where they had given their lives.2 To accommodate these families’ wishes, the United States acquired several sites in Europe for the creation of cemeteries that would also serve as fitting memorials for those who had died.3 While the War Department solicited assistance in design-ing the final resting places for soldiers, the wooden cross and the Star of David marked their temporary graves.4 In 1922, the War Department approved a plan to replace the cross and Star of David with marble slabs similar to

2 Major William R. White, Q. M. C., Our Soldier Dead, The Quarter-master Review, May-June 1930, http://www.qmfound.com/soldier _dead.htm (last visited Apr. 1, 2014). 3 Colonel Frederick W. Van Duyne, Q. M. C., Erection of Permanent Headstones in the American Military Cemeteries in Europe, The Quartermaster Review, January-February 1930, http://www. qmfound.com/stone.htm (last visited Apr. 1, 2014). 4 Ibid.

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the headstones used in many military cemeteries in the United States. But popular opposition arose to replacing the symbols of sacrifice that had marked the soldiers’ graves for over five years.5 Ultimately, the War Depart-ment replaced its former design with marble headstones that resembled the wooden crosses and stars that sol-diers had first used to commemorate their fallen broth-ers. When the cemeteries were completed, each grave was marked by either a cross or Star of David. Soldiers who were neither Christian nor Jewish were memorial-ized with a cross.6 Further, the Secretary of War was informed in 1925 that the families of some Reformed Jews preferred “no distinction be made between them and their Christian comrades” and requested that their sons be buried underneath the cross to emphasize the shared cause and sacrifices.7 The cross, then, was not used solely to commemorate the sacrifices of Christian soldiers.

The cross continued to be used as a simple and power-ful symbol of sacrifice during World War II. On June 8, 1944—two days after the D-Day landings on the beaches of Normandy—the U.S. Army established the temporary United States Military Cemetery at St. Laurent-sur-Mer to bury the thousands of men who died during the daring and costly invasion.8 A wooden cross marked each grave 5 Ibid. 6 Ibid. 7 Mrs. Frederic W. Bentley to Dwight F. Davis, Secretary of War, 12 Nov. 1925, quoted in Michael Sledge, Soldier Dead: How We Recov-er, Identify, Bury, and Honor Our Military Fallen 205 (2007). 8 WW2 US Medical Research Centre, 607th Quartermaster Graves Registration Company, Unit History, http://www.med-dept.com/ unit_histories/607_qm_gr_co.php (last visited Apr. 1, 2014). “A few temporary US military cemeteries initially set up included both American and German dead, at first in mixed groups (with white wooden crosses identifying United States military personnel and black crosses for the Germans * * *), later in distinctive fields, and

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until it was later replaced with a marble Star of David for soldiers of the Jewish faith or a marble Latin cross for all others.9 Today over 9,000 such markers cover the Nor-mandy American Cemetery and Memorial, serving as a powerful reminder of the breadth and depth of sacrifice made by all who served in World War II.10

During the Korean War, the United States did not create overseas cemeteries, but instead made great ef-forts to identify and transport the remains of fallen ser-vice members back home while the conflict was still rag-ing.11 The Graves Registration Division of the United States Army sent teams of men into the field to locate the remains of their fellow soldiers, many of whom were hastily buried in graves marked by crosses or other markers.12 The temporary grave markers that were not destroyed by weather, battle, or the enemy greatly aided the Graves Registration personnel in their task of identi-

finally in separate cemeteries. Temporary markers were only grad-ually replaced by permanent crosses on 6 July 1944.” Ibid. 9 See ibid. for a picture of the wooden crosses at the temporary cem-etery; see also The American Battle Monuments Commission, Nor-mandy American Cemetery and Memorial, at 18, http://www. abmc.gov/publications/CemeteryBooklets/Normandy_Booklet.pdf (last visited Apr. 1, 2014). 10 See The American Battle Monuments Commission, Normandy American Cemetery and Memorial 18, http://www.abmc.gov /publications/CemeteryBooklets/Normandy_Booklet.pdf (last visited Apr. 1, 2014). 11 LTC John C. Cook, Q.M.C., Graves Registration in the Korean Conflict, The Quartermaster Review, March-April 1953, http://www. qmmuseum.lee.army.mil/korea/gr_korea.htm (last visited Apr. 1, 2014). 12 Ibid.; Lynn Harold Hahn, Veteran’s Memoirs, http:// www.koreanwar-educator.org/memoirs/hahn/#SearchRecovery (last visited Apr. 1, 2014).

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fying the deceased and returning them home for a burial befitting their sacrifice.13

B. This battlefield history is reflected in numerous memorials to fallen soldiers, including the cross at Mount Soledad

During and immediately following the battles of World Wars I and II and the Korean War, soldiers who survived the carnage deemed the cross a fitting symbol to com-memorate the sacrifices and mark the resting places of their brothers-in-arms. The families and loved ones of the fallen viewed the widely-used symbol in a similar light. While the cross undoubtedly held religious mean-ing for many, its primary purpose was to identify and solemnize the place where each soldier was laid to rest. When The American Legion dedicated the Mt. Soledad Veterans Memorial to all American soldiers who died in these wars, any citizen who had been touched by the con-flicts would have recognized why a cross was chosen to commemorate that sacrifice.

Many other long-standing memorials to fallen soldiers have incorporated a cross. The Argonne Cross in Arling-ton National Cemetery, for example, rests among pine trees representing the Argonne Forest where American servicemen gave their lives during World War I.14 The Canadian Cross of Sacrifice, also at Arlington, dominates its surroundings with a bronze sword affixed to a 24-foot

13 LTC John C. Cook, Q.M.C., Graves Registration in the Korean Conflict, The Quartermaster Review, March-April 1953, http:// www.qmmuseum.lee.army.mil/korea/gr_korea.htm (last visited Apr. 1, 2014). 14 See Arlington National Cemetery, Argonne Cross, http://www.arlingtoncemetery.net/argonne-cross.htm (last visited Apr. 1, 2014) (reflecting that the base of the cross contains the in-scription “IN MEMORY OF OUR MEN IN FRANCE 1917-1918”).

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gray granite cross.15 It sits directly across the road from the Arlington Memorial Amphitheater, visited by thou-sands each day who go to honor the Tomb of the Un-knowns, which bears the inscription, “Here Rests In Honored Glory An American Soldier Known But To God.”16 The Cross of Sacrifice honors those Americans who joined the Canadian Armed Forces to fight in World War I before the United States entered the war. Dedi-cated in 1927 on Armistice Day, the monument was later modified to honor those who served in World War II and the Korean War.17 In addition to these monuments, 114 Civil War monuments include a cross, including two war memorial crosses at Gettysburg. Trunk v. City of San Diego, 660 F.3d 1091, 1100 (9th Cir. 2011) (Bea, J., dis-senting from denial of rehearing en banc). II. Congress Recognized The Nonsectarian Nature

Of The Mt. Soledad Veterans Memorial And The Military’s Broader Use Of The Cross To Honor The Fallen

A. Congress identified the Mt. Soledad Memorial as a “tribute to the members of the United States Armed Forces who sacrificed their lives in the defense of the United States.” See Act of Aug. 14, 2006 (“2006 Act”), Pub. L. No. 109-272, § 1(1), 120 Stat. 770. Congress found that the “Memorial was dedicated on April 18,

15 See Arlington National Cemetery, Canadian Cross of Sacrifice, http://www.arlingtoncemetery.net/canadian-cross.htm (last visited Apr. 1, 2014). 16 See Arlington National Cemetery, Tomb of the Unknown Soldier, http://www.arlingtoncemetery.mil/VisitorInformation/TombofUnknowns.aspx (last visited Apr. 1, 2014). 17 See Arlington National Cemetery, Canadian Cross of Sacrifice, http://www.arlingtoncemetery.mil/VisitorInformation/MonumentMemorials/CanadianCross.aspx (last visited Apr. 2, 2014), citing James Edward Peters, Arlington National Cemetery: Shrine to America’s Heroes (2000).

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1954, as ‘a lasting memorial to the dead of the First and Second World Wars and the Korean conflict’ and now serves as a memorial to American veterans of all wars, including the War on Terrorism.” § 1(2), 120 Stat. 770. And it emphasized that the “United States has a long his-tory and tradition of memorializing members of the Armed Forces who die in battle with a cross or other re-ligious emblem of their faith, and a memorial cross is ful-ly integrated as the centerpiece of the multi-faceted Mt. Soledad Veterans Memorial that is replete with secular symbols.” § 1(3), 120 Stat. 770.

Congress aptly recognized that the “patriotic and in-spirational symbolism of the Mt. Soledad Veterans Me-morial provides solace to the families and comrades of the veterans it memorializes.” § 1(4), 120 Stat. 770. Con-gress had previously designated the Memorial “as a Na-tional Veterans Memorial” because of its historical signif-icance and role as a veterans memorial. § 1(5), 120 Stat. 770; see Consolidated Appropriations Act, 2005, Pub. L. No. 108–447, div. J, § 116(a), 118 Stat. 3346 (16 U.S.C. § 431 note) (“The Mt. Soledad Veterans Memorial * * * is hereby designated as a national memorial honoring vet-erans of the United States Armed Forces.”). Congress observed that the City of San Diego and 76 percent of San Diego voters supported federal ownership of the Memorial. 2006 Act § 1(6)–(7), 120 Stat. 770.

B. The court of appeals’ decision effectively invalidates the considered judgment of Congress and the President that the Memorial is a “historically significant national memorial” suitable for acquisition and preservation by the United States Government. See 2006 Act § 2(a), 120 Stat. 770 (16 U.S.C. § 431 note) (directing the Executive to acquire, maintain, and preserve the Memorial). For that reason alone, review is warranted in this case.

This Court frequently reviews lower-court decisions holding a federal law unconstitutional, even in the ab-

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sence of a circuit split. See, e.g., Holder v. Humanitari-an Law Project, 561 U.S. 1 (2010); United States v. Ste-vens, 559 U.S. 460 (2010); United States v. Williams, 553 U.S. 285 (2008); Gonzales v. Carhart, 550 U.S. 124 (2007); Ashcroft v. ACLU, 542 U.S. 656 (2004); United States v. Morrison, 529 U.S. 598 (2000); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). That practice is consistent with the Court’s acknowledgment that judging the constitu-tionality of an Act of Congress is “‘the gravest and most delicate duty that this Court is called upon to perform.’” Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J.)).

Although the decisions below do not directly strike down an Act of Congress, they effectively accomplish that result by requiring the demolition of a significant part of the war memorial that Congress sought to pre-serve by acquiring the land on which it sits. Congress’ express findings that the Memorial commemorates and honors America’s veterans—without promoting reli-gion—make review particularly appropriate here.

C. The legislative history of the 2006 Act confirms Congress’ understanding that federal ownership of the Memorial would preserve a well-known veterans memo-rial in a manner consistent with the Constitution. Sena-tors Barbara Boxer and Dianne Feinstein of California both supported the Act because of the Memorial’s history and significance to veterans. 152 Cong. Rec. S8364–S8365 (daily ed. July 27, 2006). Senator John McCain, a war hero himself, described the bipartisan Act as a “leg-islative solution” saving a “remarkably popular land-mark” from “legal wrangling.” Id. at S8365. Senator Jeff Sessions observed that acquisition of the Memorial “wouldn’t be unconstitutional under Federal law,” and “does not establish a religion.” Id. at S8365. The De-partment of Justice likewise recommended the 2006 Act to Congress as a “needed” measure, and the President

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strongly supported the Act’s “important goal of preserv-ing the integrity of war memorials.” Id. at S8364; 152 Cong. Rec. H5423 (daily ed. July 19, 2006).

The legislation requiring federal acquisition of the Memorial received overwhelming support from Con-gress, the Executive Branch, veterans’ groups (including The American Legion), and millions of Americans. 152 Cong. Rec. H5422–H5426. It passed the House of Rep-resentatives by a 349-74 vote. Id. at H5433–H5434. It was unanimously adopted by the Senate. 152 Cong. Rec. S8550 (daily ed. Aug. 1, 2006); cf. Salazar v. Buono, 559 U.S. 700, 727 (2010) (Alito, J., concurring) (“[I]t is note-worthy that Congress, in which our country’s religious diversity is well represented, passed this law by over-whelming majorities.”).

Congress’ unique ability to balance opposing interests when establishing federal policy is “one of the principal reasons for deference to its policy determinations.” Sal-azar, 559 U.S. at 717 (plurality). As in this case, Con-gress often makes practical accommodations for religious aspects of historical monuments, at once complying with the Establishment Clause while also “avoiding the dis-turbing symbolism associated with the destruction of [a] historic monument.” Id. at 727 (Alito, J., concurring); Van Orden v. Perry, 545 U.S. 677, 704 (2005) (Breyer, J., concurring in the judgment) (recognizing that tearing down longstanding monuments with religious symbolism could encourage future disputes and create “religiously-based divisiveness”). Deference to Congress’ judgment is especially warranted here given Congress’ broadly supported intervention to preserve a longstanding veter-ans memorial from destruction and its express findings of secular reasons for doing so.

One Justice of this Court previously observed that “Congress’ evident desire to preserve the [M]emorial makes it substantially more likely that four Justices will

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agree to review the case in the event the Court of Ap-peals affirms the District Court’s order.” San Diegans For Mt. Soledad Nat’l War Mem’l v. Paulson, 548 U.S. 1301, 1304 (2006) (Kennedy, J., in chambers) (granting stay). The courts below have now effectively overruled the will of Congress, disregarded its express findings of legislative purpose, and made clear that the cross within the Memorial must be torn down. Pet. App. 2-3. This Court should therefore review the “issues created by the federal statute” out of “the respect due * * * to Con-gress.” San Diegans For Mt. Soledad Nat’l War Mem’l, 548 U.S. at 1304; see Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 5 (2004) (recognizing that Court granted certiorari to review the Ninth Circuit’s order striking down the statutorily-created Pledge of Alle-giance “[i]n light of the obvious importance of that deci-sion”). III. This Case Presents A Substantial And Recurring

Issue Of National Importance That Warrants Certiorari Before Judgment Because Time Is Of The Essence

A. Certiorari before judgment is rarely granted. Peti-tioner offers compelling reasons that this is the excep-tional case that merits it. Pet. 14-18. The Legion notes one additional reason that immediate review is vital: vet-erans and family members of those honored by the Me-morial deserve rapid resolution of this dispute, for delay could mean a decision comes too late.

The living individuals who were originally honored by the Mount Soledad Memorial are overwhelmingly 80 years of age and older. There are no remaining World

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War I veterans. The last one died at age 110 during the initial Ninth Circuit appeal.18

The youngest World War II veterans and widows are now well into their ninth decade. Only 1.7 million veter-ans remain of the 16 million that served during World War II.19 Of special relevance here, an average of 550 such veterans die every day.20

More than half of the 5.7 million Americans who served during the Korean War have died.21 In the three-year period between May 2010 and May 2013, over 232,000 Korean War veterans died—an average of 212 per day.22

The effect of delay could not be more concrete to these veterans and their families, many of whom are Legion members deeply invested in the outcome of this case. The previous Ninth Circuit appeal stretched more than three years from the time the notice of appeal was filed until final disposition. Pet. App. 10, 103. Even if the pre-sent appeal were to consume only two years, well over

18 Richard Goldstein, Frank Buckles, Last World War I Doughboy, Is Dead at 110, N.Y. Times, Feb. 28, 2011, http://www. nytimes.com/2011/03/01/us/01buckles.html. 19 Department of Veterans Affairs, America’s Wars, May 2013, http://www.va.gov/opa/publications/factsheets/fs_americas_wars.pdf (last visited Apr. 3, 2014). 20 National World War II Museum, WWII Veterans Statistics, http://www.nationalww2museum.org/honor/wwii-veterans-statistics. html (last visited Apr. 3, 2014). 21 Department of Veterans Affairs, America’s Wars, May 2013, http://www.va.gov/opa/publications/factsheets/fs_americas_wars.pdf (last visited Apr. 3, 2014). 22 Compare Department of Veterans Affairs, America’s Wars, May 2013, http://www.va.gov/opa/publications/factsheets/fs_americas_ wars.pdf (last visited Apr. 3, 2014) with Department of Veterans Af-fairs, America’s Wars, May 2010, http://www.kwva.org/pdfs /americas_wars_1005.pdf (last visited Apr. 3, 2014).

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500,000 World War II and Korean War veterans would die while the case is pending before the Ninth Circuit.

It would be truly unfortunate if a large fraction of the remaining veterans of these wars were to pass away while one of our Nation’s leading memorials to them is under an order of judicial demolition. That possibility is eminently avoidable. The decisions below plainly contra-vene controlling precedent, and the Court’s review will not be enhanced by another protracted appellate process that cannot alter the court of appeals’ outcome or reason-ing. Early review is needed for compelling reasons.

B. The legal question at issue here is substantial and recurring. The Tenth Circuit has adopted a legal analy-sis very similar to that of the Ninth Circuit in striking down memorial crosses honoring fallen Utah state troop-ers. See Am. Atheists, Inc. v. Davenport, 637 F.3d 1095 (10th Cir. 2010). The judgments of these two courts of appeals cast a shadow over all other memorial crosses in the nation. See, e.g., Pet. 28–29 (discussing litigation over the September 11th Memorial Cross).

Moreover, there is serious, long-running confusion in the lower courts over the proper application of this Court’s Establishment Clause precedents. See Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 132 S. Ct. 12, 22 (2011) (Thomas, J., dissenting from the denial of certiorari) (“It is difficult to imagine an area of law more in need of clarity. * * * It is this Court’s precedent that has rendered even the most minute aesthetic details of a religious display relevant to the constitutional question. We should not now abdicate our responsibility to clean up our mess because these disputes, by our own making, are ‘factbound.’”).

Nor is there any reason to defer review. Further per-colation would not materially aid this Court’s considera-tion. This case has given rise to multiple opinions reflect-ing the views of nine different judges. Pet. App. 39

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(McKeown, J., joined by Pregerson & Paez, JJ.); id. at 103 (Burns, J.) (granting summary judgment in favor of the Memorial); id. at 10 (Bea, J., joined by four judges, dissenting from the denial of rehearing en banc). One of these opinions explained the court of appeals’ reasoning for invalidating the Memorial, while the others argued that the Memorial should be upheld for various reasons. In reviewing the decisions below, this Court would have the benefit of thorough consideration of arguments for and against the Memorial’s validity. Awaiting an addi-tional Ninth Circuit decision on the appropriate remedy would add nothing to the Court’s review.

After two circuit-level decisions to strike down cross-es, “governments face a Hobson’s choice: foregoing me-morial crosses or facing litigation. The choice most cash-strapped governments would choose is obvious, and it amounts to a heckler’s veto.” Am. Atheists, Inc., 637 F.3d at 1106 (Kelly, J., dissenting from the denial of re-hearing en banc); see also Utah Highway Patrol Ass’n, 132 S. Ct. at 22–23. Delaying review would exacerbate significant practical problems for local governments and veterans groups everywhere. IV. The Court Of Appeals’ Decision Threatens The

Widespread Use Of The Cross By The United States Military To Recognize Valor And Memo-rialize Sacrifice

The court of appeals rested its decision largely on its characterization of the cross within the Memorial as an impermissible “sectarian” or “religious” symbol that nec-essarily projects a message of religious endorsement. In doing so, the court of appeals rejected evidence of the U.S. military’s historical use of the cross to honor and commemorate soldiers and focused monomaniacally on the cross’ role as “‘the preeminent symbol of Christiani-ty.’” Pet. App. 63–64 (quoting Buono v. Norton, 371 F.3d

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543, 544–545 (9th Cir. 2004)).23 The court of appeals’ per-sistent blindness to the physical and historical context of the Memorial cross threatens to disrupt the U.S. mili-tary’s longstanding use of the cross to honor valor and commemorate the fallen.

A. Crosses are frequently used by the military in a way that “need not be taken as a statement of govern-mental support for sectarian beliefs.” Salazar, 559 U.S. at 719 (plurality). In the United States and around the world, the cross continues to be incorporated into dozens of honorific military medals. The United States military recognizes especially meritorious conduct with the Dis-tinguished Service Cross24 and the Distinguished Flying Cross.25 British, Australian, and Canadian soldiers may be awarded the Military Cross26 and, for acts of most conspicuous bravery, the Victoria Cross.27 The German Bundeswehr bestows the Honor Cross for bravery.28 The

23 See also Pet. App. 66 (“[T]he Latin cross remains an iconic Chris-tian symbol.”); id. at 77-78 (“The Latin cross * * * remains a sectari-an, Christian symbol.”); id. at 93 (noting “widespread public recogni-tion of the Cross as a Christian symbol”). 24 See The Institute of Heraldry, Distinguished Service Cross, http://www.tioh.hqda.pentagon.mil/Catalog/Heraldry.aspx?HeraldryId=15238&CategoryId=3&grp=4&menu=Decorations%20and%20Medals&ps=24&p=0 (last visited Apr. 2, 2014). 25 See The Institute of Heraldry, Distinguished Flying Cross, http://www.tioh.hqda.pentagon.mil/Catalog/Heraldry.aspx?HeraldryId=15249&CategoryId=3&grp=4&menu=Decorations%20and%20Medals&ps=24&p=0 (last visited Apr. 2, 2014). 26 See Ministry of Defence, Military Cross (MC), http://www.mod.uk/DefenceInternet/DefenceFor/Veterans/Medals/MilitaryCrossmc.htm (last visited Apr. 2, 2014). 27 See Ministry of Defence, Victoria Cross, http://www.mod. uk/DefenceInternet/DefenceFor/Veterans/Medals/VictoriaCross.htm (last visited Apr. 2, 2014). 28 See Germany Awards Military Cross of Courage, Spiegel Online (July 6, 2009), http://www.spiegel.de/international/germany/

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Mexican military awards the Cruz de Guerra.29 And the French military awards the famous Croix de Guerre.30

B. Used in the military context, the cross communi-cates messages of universal significance that are not lim-ited to a specific religion. When incorporated into med-als, the cross communicates that its wearer has per-formed courageous acts worthy of honor. When erected as part of a memorial to America’s veterans, its serves to “honor and respect those whose heroic acts, noble contri-butions, and patient striving help secure an honored place in history for this Nation and its people.” Salazar, 559 U.S. at 721 (plurality). Far from communicating a purely or even predominantly religious message, a cross used as part of a veterans memorial “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 forgotten.” Ibid.

That the cross may communicate universal or even secular messages is not unusual or unexpected. In other contexts, the cross communicates messages that bear lit-tle to no religious meaning. Worn as jewelry, the cross is frequently nothing more than a hollow fashion statement. Sewn into a flag, the cross communicates any number of political and nationalistic messages.31 Set ablaze by 0,1518,634601,00.html (last visited Apr. 2, 2014). 29 See Secretaria de la Defensa Nacional, Cruz de Guerra, http://www.sedena.gob.mx/index.php/conoce-la-sedena/antecedentes-historicos/sedena/heraldica-militar/condecoracion/condecoraciones/ 312-cruz-de-guerra (last visited Apr. 2, 2014). 30 See The Institute of Heraldry, Croix de Guerre, France, http://www.tioh.hqda.pentagon.mil/Catalog/Heraldry.aspx?HeraldryId=15492&CategoryId=9399&grp=12&menu=Decorations%20and%20Medals&ps=24&p=0 (last visited Apr. 2, 2014). 31 The flag of the United Kingdom, the Union Jack, is actually a com-bination of three crosses: the cross of Saint George, patron saint of England; the cross saltire of Saint Andrew, patron saint of Scotland; and the cross saltire of Saint Patrick, patron saint of Ireland. The

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members of the Ku Klux Klan, the cross communicates racial intolerance and hatred. See Capitol Square Re-view & Advisory Bd. v. Pinette, 515 U.S. 753, 770 (1995) (Thomas, J., concurring) (noting that erection of a cross by the Ku Klux Klan “is a political act, not a Christian one”). A cross means different things depending on physical and historical context.

Here, as Congress found, the Memorial evokes a rich and well-accepted heritage of military honor. “It stands, like those crosses in faraway lands of Americans who fell in Tripoli, Americans who were buried at Normandy, and of Americans who have never been returned home from the sea. It stands as a symbol of their passing and their sacrifice.” 152 Cong. Rec. H5424 (daily ed. July 19, 2006) (statement of Rep. Issa).

C. The court of appeals rejected Congress’ findings that the cross incorporated within the Mt. Soledad Me-morial bears non-religious meaning or significance. In-stead, the Ninth Circuit concluded that “[b]y claiming to honor all service members with a symbol that is intrinsi-cally connected to a particular religion, the government 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.’” Pet. App. 99 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984)).

In effect, the Ninth Circuit concluded that the cross is necessarily a sectarian symbol, regardless of context or stated Congressional purpose, and that “‘its placement on public land * * * violates the Establishment Clause.’” Id. at 26–27 (citation omitted) (quoting Separation of Church & State Comm. v. City of Eugene, 93 F.3d 617, 620 (9th Cir. 1996)). That categorical approach is contra-

British Monarchy, Union Jack, http://www.royal.gov.uk/Monarch UK/ Symbols/UnionJack.aspx (last visited Apr. 2, 2014).

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ry to this Court’s direction in Van Orden v. Perry that the message conveyed by a religious symbol displayed on public grounds must be ascertained, in the first instance, from how the symbol is used in light of its surrounding context and history. 545 U.S. at 701 (Breyer, J., concur-ring in the judgment). The court of appeals turned Van Orden on its head by looking to use and context only as factors that failed to ameliorate what the court found to be the inherently sectarian, and constitutionally toxic, message communicated by the cross within the Memori-al.

D. The decisions below are an affront not only to the Legislative and Executive Branches, but also to genera-tions of soldiers, their families, and patriotic Americans. 152 Cong. Rec. H5423–H5424 (daily ed. July 19, 2006) (joint statements of The American Legion, the Disabled American Veterans, the VFW, and AMVETS).

“Overlooking the Pacific Ocean,” the Memorial “is the first and last thing that ships see as they arrive or depart from one of the world’s largest naval installations.” Ibid. The Memorial stands at the location “where the 1st Ma-rine Division embarked for those incredible fights in the island chains, taking back Guadalcanal, Iwo Jima and other islands in the Axis Powers in World War II. * * * It is a point where many families last saw their loved ones.” 152 Cong. Rec. H5426 (daily ed. July 19, 2006) (statement of Rep. Hunter). Thus, Congress determined that the “patriotic and inspirational symbolism of the Mt. Soledad Veterans Memorial provides solace to the families and comrades of the veterans it memorializes.” 2006 Act § 1(4), 120 Stat. 770.

As with the memorial cross to World War I veterans that stands alone in the Mojave Desert, the government cannot remove the Mount Soledad cross “without convey-ing disrespect for those the cross [is] honoring.” Salazar, 559 U.S. at 716 (plurality). Tearing down the Memorial

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cross will be “viewed by many as a sign of disrespect for the brave soldiers whom the cross was meant to honor.” Id. at 726 (Alito, J., concurring); see Van Orden, 545 U.S. at 704 (Breyer, J., concurring in the judgment).

In these circumstances, the decisions below should be reviewed without further delay.

CONCLUSION The petition for certiorari before judgment should be

granted.

EDWIN MEESE III 75TH U.S. ATTORNEY GENERAL 214 Massachusetts Ave., N.E. Washington, D.C. 20002 (202) 608-6180 PHILIP B. ONDERDONK NATIONAL JUDGE ADVOCATE THE AMERICAN LEGION 700 Pennsylvania St. Indianapolis, Indiana 46204 (317) 630-1200

Respectfully submitted. AARON M. STREETT Counsel of Record EDMUND G. LACOUR JR. BAKER BOTTS L.L.P. 910 Louisiana St. Houston, Texas 77002 (713) 229-1855 aaron.streett@bakerbotts.com RYAN L. BANGERT BAKER BOTTS L.L.P. 2001 Ross Ave., Ste. 600 Dallas, Texas 75201 (214) 953-6500

Counsel for Amicus Curiae The American Legion

April 2014