Overshadowed by Hobby Lobby, minutes before the Supreme Court handed down its landmark decision, another case was denied review by the Court but with a signal that it was ready to be taken at a later date. If the justices take that case in 2015, it will be even bigger than Hobby Lobby. It’s Mt. Soledad Memorial Association v. Trunk.
As big as Hobby Lobby was, it was nonetheless a case where a federal regulation violated a federal statute passed by Congress. Mt. Soledad is about what the core meaning of the Establishment Clause of the Constitution’s First Amendment is.
Breitbart News has previously written on this case, which in the lower courts is called Trunk v. San Diego. The cross atop Mt. Soledad in the La Jolla neighborhood of San Diego has stood in one form or another since 1913. It is the only federal war memorial dedicated to those who served and sacrificed in all of America’s wars, with individualized granite plaques to more than 3,000 service members from each branch of the Armed Forces.
The ACLU sued to have the cross removed in 1989, and the memorial has been in litigation ever since. In the fourth round of litigation, the U.S. Court of Appeals for the Ninth Circuit held in 2011 that the Mt. Soledad Veterans Memorial was an unconstitutional endorsement of Christianity.
The Supreme Court declined to take it in 2012. But in doing so, Justice Samuel Alito accompanied the order with a very rare statement, which explained that the lower court held the current appearance of the memorial was unconstitutional but that no final judgment had been handed down with an order that the cross be removed. This left open the possibility that the memorial could be modified in a way that both parties would accept.
So for a year the parties negotiated, and things eventually came to a standstill. When the district court was informed that the parties were at an impasse, the judge made everything final, and–very reluctantly–ordered the cross removed. The district judge then stayed his order until all appeals were resolved.
The association filed one last appeal at the Ninth Circuit. But its lawyers–Allyson Ho from Morgan Lewis and Kelly Shackelford, Jeff Mateer, and Hiram Sasser from Liberty Institute–also petitioned the Supreme Court to take the case now, since there was already the 2011 Ninth Circuit decision on the books, and none of the facts changed since that time.
On June 30, 2014, the Supreme Court denied this petition to the case before the Ninth Circuit could issue another judgment. Once again, Alito took the extremely rare step of attaching a statement, explaining:
… the District Court has issued an order requiring the memorial to be removed, but it has stayed that order pending appeal. The Court of Appeals has not yet reviewed that order on appeal. Seeking to bypass that step, petitioner seeks certiorari before judgment. In my view, it has not met the very demanding standard we require in order to grant certiorari at that stage. In light of the stay, any review by this Court can await the decision of the Court of Appeals. I therefore agree with the Court’s decision to deny the petition.
Taken with other statements by other justices, it seems clear there are enough votes on the Supreme Court to take this case once the Ninth Circuit hands down a final decision. The appeals court will hear arguments sometime in the next few months, and likely render a decision in the first half of 2015.
If so, the Supreme Court could have this case by the second half of 2015. This case would ask the Court to make clear what it indicated in its recent Town of Greece v. Galloway decision from May 5 of this year, that the Supreme Court has entirely thrown overboard the “endorsement test” standard for Establishment Clause cases that was used to strike down this cross and countless other traditional displays for a quarter-century.
If so, the Court will instead hold–likely by a 5-to-4 vote–that the Constitution’s Establishment Clause is only violated if someone is being literally coerced by the government to engage in a religious activity against his or her conscience. So long as the government is not forcing someone to do such things, the Constitution is not violated.
If a person doesn’t like a cross, or Ten Commandments display, or nativity scene on government property, they must convince local politicians to remove it, or replace those politicians on Election Day. The courts would no longer have the power to impose their own judgment just because they didn’t like its religious content.
Such a ruling could represent the greatest restoration of religious liberty in America since the Bill of Rights was ratified in 1791.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.
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