For more than a century, a memorial, 43-foot, Latin Cross had been present at Mount Soledad, but in 1989, the city of San Diego was sued on grounds that the presence of the cross violated the First Amendment. In response to a court ruling that the cross had to be removed and sold to the highest bidder, the city simply sold the land to a nonprofit association, which then spent around $1 million making the cross the centerpiece of a Korean War memorial. A decade of litigation followed.
Finally, in 2006, a federal judge ordered the city to remove the cross. However, Congress obtained the land through eminent domain to preserve it in its original state. In response, the Jewish War Veterans of the United States of America and others represented by the American Civil Liberties Union brought a lawsuit challenging Congress's taking of the memorial and the presence of the cross on federal property under the establishment clause. The parties alleged that congressional preservation of the cross denoted an unfair advancement of a religion and an excessive entanglement with a religion.
The district court ruled the cross constitutional because, instead of promoting a religion, it was there to promote the service of veterans. However, the Ninth Circuit Court of Appeals, after conducting an inquiry into the purpose and history of the memorial, learned that "the Memorial has a long history of religious use and symbolism that is inextricably intertwined with its commemorative message. This history, combined with . . . the prominence of the Cross in the Memorial, leads us to conclude that a reasonable observer would perceive the Memorial as projecting a message of religious endorsement, not simply secular memorialization" and therefore violates the establishment clause. What test did the Court of Appeals use to come to its conclusion? [Trunk v. City of San Diego, 629 F.3d 1099 (2011).]