INTRODUCTION :: High above San Diego, a solitary Latin cross casts its shadow over the picturesque coastline of Southern California. The cross, a towering icon of concrete and faith, is encircled by several massive walls of granite into which thousands of names are meticulously carved. These etchings celebrate the heroism of America’s greatest citizens, those who made a patriot’s ultimate sacrifice while serving their country on distant shores. Resting now beneath a cross erected in their honor, this army of fallen soldiers stands eternal guard atop Mt. Soledad Natural Park.
The Mt. Soledad cross has been the subject of a protracted legal battle for nearly twenty years. At the center of the dispute is whether such a recognized symbol of religion should be prominently displayed on publicly owned land. Supporters of the cross argue that any religious message conveyed by the display is secondary to its true purpose: the commemoration of war veterans. Its detractors cite the underinclusive and divisive effect of using a decidedly Christian symbol to memorialize soldiers who may be of differing faiths. In August of 2006, the U.S. Congress stepped squarely into the fray, taking the cross from the City of San Diego by eminent domain and declaring the display a National Memorial.
This Note addresses the federal government’s authority to acquire and recognize religious symbols as National Memorials and analyzes the intersection of Establishment Clause, historic preservation, and eminent domain doctrines. Section II recounts the factual and legal history of the Mt. Soledad cross. Section III distills the Supreme Court’s Establishment Clause jurisprudence in the area of religious displays on public land and comments on the impact of new Justices on the bench. Section IV summarizes federal case law involving Latin crosses and distinguishes Mt. Soledad from prior decisions. Section V describes the analogous treatment of historic religious properties under the National Historic Preservation Act. Section VI addresses the government’s authority to take property for the purpose of establishing a National Memorial and discusses the limited interactions among the Establishment Clause, historic preservation
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December 2013, Vol. 65, No. 6
Adam Mossoff, The Trespass Fallacy in Patent Law
Alan White & Carolina Reid (Essay), Saving Homes? Bankruptcies and Loan Modifications in the Foreclosure Crisis
Lee Harris, CEO Retention
Jennifer Koh, Rethinking Removability
Katrina Wyman & Nicolas Williams, Migrating Boundaries