AHA v. Lake Elsinore - Injunction Order

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

AMERICAN HUMANIST ASSOCIATION,

DIANA HANSEN, and JOHN LARSEN,

Plaintiffs,

vs.

CITY OF LAKE ELSINORE,

Defendant.

CASE NO. 5:13-cv-989-SVW-OP

IN CHAMBERS ORDER Re MOTION FOR

PRELIMINARY INJUNCTION [8]

I. INTRODUCTION

On May 30, 2013, Plaintiffs American Humanist Association,

Diana Hansen, and John Larsen (collectively, “Plaintiffs”) filed

the instant action in this Court against Defendant City of Lake

Elsinore (“Defendant” or “City”). (Dckt. 1.) Plaintiffs’

Verified Complaint asserts that Defendant’s action violates both

the Establishment Clause of the Federal Constitution as well as

the Establishment, No Preference, and No Aid Clauses of the

California Constitution. Id. In their Verified Complaint,

Plaintiffs ask this Court for a declaration that Defendant’s

approval of the design, funding, construction, and display of the

Case 5:13-cv-00989-SVW-OP Document 30 Filed 07/16/13 Page 1 of 49 Page ID #:280

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monument (“Monument 2”)1 discussed herein violates the above-

listed constitutional provisions, as well as an injunction

preventing Defendant from funding or displaying the monument on

public property or transferring the monument to private property.

Id.

On June 11, 2013, Plaintiffs filed their motion for a

preliminary injunction, asking this Court to prevent Defendant,

as well as any successors or assigns, from funding or displaying

the monument on public property, “or through subsequent transfer

on private property.” For the reasons put forward in this Order,

the Court GRANTS Plaintiffs’ motion for preliminary injunction,

and ENJOINS Defendant from displaying Monument 2 in front of the

Stadium.

1 At this Court’s July 15, 2013 hearing, Defendant’s counsel

referred to the monument at issue as “Monument 3,” because there were three distinct designs proposed to the Lake Elsinore City Council (although only the final two contained sectarian symbols). This Court refers to “Monument 2” as the monument that

was ultimately approved by the City Council on November 13, 2012, which featured several Latin crosses and one Star of David and is the subject of this litigation.


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II. FACTUAL BACKGROUND

A. Evidence in Support of a Motion for Preliminary Injunction

The facts below are taken from Plaintiffs’ Verified

Complaint (“VC”). The Ninth Circuit has held that “[t]here is no

disputing that an affidavit and a complaint may be the basis for

a preliminary injunction unless the facts are substantially

controverted by counter-affidavits.” McCormack v. Hiedeman, 694

F.3d 1004, 1019 (9th Cir. 2012); see also K–2 Ski Co. v. Head

Ski Co., 467 F.2d 1087, 1088-89 (9th Cir. 1972) (“A verified

complaint or supporting affidavits may afford the basis for a

preliminary injunction; but if the facts so appearing consist

largely of general assertions which are substantially

controverted by counter-affidavits, a court should not grant such

relief unless the moving party makes a further showing sufficient

to demonstrate that he will probably succeed on the merits.”)

(internal citations omitted).

Indeed, the Ninth Circuit has held that a “trial court may

give even inadmissible evidence some weight, when to do so serves

the purpose of preventing irreparable harm before trial.” Flynt

Distrib. Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.

1984); see also Republic of the Philippines v. Marcos, 862 F.2d

1355, 1363 (9th Cir. 1988) (allowing a district court to consider


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hearsay in deciding whether to issue a preliminary injunction,

when the plaintiff “put forward enough to show a fair chance of

succeeding with its proof”); Neighborhood Assistance Corp. of Am.

v. First One Lending Corp., 2012 WL 1698368, at *16 (C.D. Cal.

May 15, 2012) (granting a preliminary injunction based on

affidavits, despite defendants’ evidentiary objections, because

“a preliminary injunction may be granted based on affidavits or

the allegations in a ‘verified complaint,’ despite their lack of

conformity with the Federal Rules of Evidence regarding hearsay

and personal knowledge”).

Defendant presented no facts that “substantially controvert”

the allegations made in Plaintiffs’ Verified Complaint in its

pleadings. Moreover, Defendant did not present any facts that

would “substantially controvert” Plaintiffs’ Verified Complaint

at the hearing held in this matter on July 15, 2013. Defendant

has provided additional facts, in the form of declarations and

exhibits, which have been incorporated into the factual

discussion below.

B. Allegations in the Verified Complaint

In April of 2012, the Lake Elsinore City Council began

publicly discussing the possibility of creating a monument to

honor local military veterans. VC ¶ 13.2 On May 7, 2012, the

2 The Lake Elsinore City Council is a five-member body; each

councilmember is elected to a staggered four-year term. See CITY

(footnote continued)


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City Council directed City staff to research potential designs

for the monument. VC ¶ 14. In response, City staff prepared a

report that was presented to the City Council at a meeting on

July 10, 2012. VC ¶ 17. The report proposed three design

possibilities for the Lake Elsinore Memorial: a rectangular slab,

a pentagonal slab, and an obelisk-shaped slab. VC ¶¶ 17-19.

Each proposed monument included the text: “Lake Elsinore Veterans

Memorial. This Memorial is dedicated to the men and women who

served in our armed services. We shall never forget!” VC ¶ 17.

Each proposed monument also included the City’s crest and the

insignias of all five branches of the military, but was otherwise

devoid of images or text. VC ¶ 17. The Staff Report also noted

that $50,000 had been budgeted for the monument in the City’s

fiscal year 2012-2013 budget, and recommend that the monument the

placed in the City Hall courtyard. VC ¶¶ 20-21.

After the City staff completed its report, then-Mayor Pro

Tem Daryl Hickman suggested that the monument be placed at the

entrance of the Lake Elsinore Diamond Stadium (the “Stadium”),

located at 500 Diamond Drive in Lake Elsinore, California, in

order to maximize exposure. VC ¶¶ 12, 22. The City owns the

OF LAKE ELSINORE, http://www.lake-elsinore.org/index.aspx?page=337

(last visited July 15, 2013). The Mayor and Mayor Pro Tem are

members of the City Council, although it is unclear if

individuals are separately elected to these positions by the

voters or are chosen to fill these leadership roles from amongst

the five elected councilmembers. Id.


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stadium and the property on which it sits, although it is managed

by Lake Elsinore Storm LP, a non-governmental agency. Decl. of

City of Lake Elsinore City Manager Grant Yates ¶¶ 3-5. The

Stadium is home to the Lake Elsinore Storm, a Class A baseball

club affiliated with the San Diego Padres. Id. at ¶ 4.

After the location discussion concluded, Councilmember

Melissa Melendez moved that the City Council chose the Obelisk

Design and place the monument at the Stadium’s entrance. VC ¶

22. Melendez further moved to create an ad-hoc design

subcommittee (the “Redesign Committee” or the “Committee”) of the

City Council, led by then-Mayor Brian Tisdale and Joyce Hohenadl

of the Lake Elsinore Historical Society, to change the design of

the monument. VC ¶ 22. Both motions passed unanimously. Id.

The Redesign Committee met on August 3, September 7, October

5, and October 19, 2012. VC ¶¶ 23. 25. At the October 19, 2012

meeting, the Committee adopted a recommendation that the City

Council approve the Stadium as the monument’s location and

authorize the City to contract with a local company, Sun City

Granite Inc., to construct the monument. VC ¶¶ 25. The

Committee also recommended approval of the following design

(“Monument 1”):


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VC ¶ 26, Ex. 1. The Committee’s recommendation was presented to

the City Council at a meeting on October 23, 2012 by City

Management Analyst Justin Carlson, who had attended the August 3

and October 19, 2012 Redesign Committee meetings. VC ¶ 28.

Carlson detailed his recommendations in a report, dated October

23, 2012, that noted the background and budget of the proposal.

See CITY OF LAKE ELSINORE, AGENDA ITEM NO. 19 (Oct. 23, 2012), available

at http://www.lake-

elsinore.org/index.aspx?recordid=1718&page=492. During his

presentation, Carlson indicated that the monument’s purpose was

to represent soldiers from “all wars.” Id.

After Carlson finished his presentation, several local

residents addressed the City Council and voiced their objections


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to the proposed monument. VC ¶ 30. Some specifically objected

to the presence of the Latin cross,3 noting that “[t]o construct a

veterans memorial that honors those only of one faith will surely

invite litigation,” and that the presence of the cross would

“open the floodgates to First Amendment controversies.” VC ¶ 30-

33. Others objected only to the design itself; at least one

speaker stated that it was “refreshing to see a cross that is our

heritage.” VC ¶ 32.

At the conclusion of the public’s remarks, the City Council

began its own discussion of the proposed monument. Then-Mayor

Pro Tem Hickman stated, “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 is leaning

that way.” VC ¶ 35. Councilmember Melendez stated that it was a

“sad reflection on our society when as a Christian nation, one of

the principles upon which we were founded is something we are

forced to hide in society specifically with reverence to our

veterans, the very people who have fought to protect our

religious freedom . . . . However, as I understand it, the cross

3 The “Latin” cross is distinguished from other crosses by

its “iconic horizontal arm that is shorter than the vertical

arm.” Trunk v. City of San Diego, 629 F.3d 1099, 1111 (9th Cir.

2011). By contrast, a “Greek” cross has two equilateral arms

that bisect one another. Id. The Ninth Circuit has concluded

that red Greek cross on a white background is “so closely

identified with the American Red Cross that it has largely shed

any religious symbolism.” Id.


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on this memorial is an issue, there is a No Preference Clause

apparently that we must abide by so that very likely, will have

to be removed.” VC ¶ 37. Mayor Tisdale stated, “it upsets me

that we have to play the pettiness of the cross and talk about

the Christianity of it.” VC ¶ 40.

At that point, Councilmember Robert Magee made a motion to

continue the item and direct City staff to discuss the design

with regard to the “religious references.” VC ¶ 41. Mayor Pro

Tem Hickman objected, stating “I’m not going to sit here and wait

for people to denigrate my beliefs, okay, and so I’ll give them

two weeks.” VC ¶ 42. Mayor Tisdale suggested that it would not

be possible to have a new design in two weeks; Mayor Pro Tem

Hickman responded, “Then we don’t have to change it.” VC ¶¶ 43-

44. Councilmember Melendez chimed in that she did not “want to

see this continued,” and then made a motion to approve the design

and proposed location “with the exception of the cross.” VC ¶

45. Before continuing, Councilmember Melendez turned to the city

attorney and asked, “is that an issue?,” to which the city

attorney responded “yes.” VC ¶ 46. Melendez followed up by

asking “So, it’s not allowed to be on there, by law?”, to which

the city attorney responded “It’s something that we should

evaluate, but it is an issue . . . . If what you want is a yes/no

answer, right now, the answer is, it cannot be there.” VC ¶ 47.

Councilmember Melendez then made another motion that “we


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move forward today with the exception of, which it pains me to

say this, of removing the cross, only because the city attorney

is saying that’s going to open us up to litigation, is that

correct?” VC ¶ 49. The city attorney responded: “It’s a

publicly funded, it goes back to the separation of church and

state, and there is a no preference, you have public fund going

into a public monument in a public location, and it demonstrate,

arguably demonstrates, a religious preference.” VC ¶ 50. In

response, Councilmember Melendez made yet another motion, stating

“You know what, here’s my motion to, 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.” VC ¶ 53.

At that point, Councilmember Magee restated his motion to

“eliminate the religious reference” and have the City staff

develop “another recommendation.” VC ¶ 54. The motion passed 4-

0, with Mayor Tisdale abstaining. VC ¶ 55.

On November 2, 2012, the Redesign Committee held another

public meeting and took testimony from approximately seventeen

residents about the design. VC ¶ 56. Four were against the most

recent version; two indifferent; nine in favor; and two supported

including the Latin cross but proposed adding a Star of David.

VC ¶ 56. The Redesign Committee voted unanimously to amend the

design by adding a Star of David and adding numerous Latin


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crosses in the background, and recommended approval of the

following design (“Monument 2”):

VC ¶ 57, Ex. 3. The image includes several Latin crosses, as

well as a single Star of David sitting atop a post. The proposed

text reads: “HONORING BRAVE MEN AND WOMEN WHO BY THEIR SACRIFICE

GIVE LIFE TO OUR MOST PRECIOUS GIFT—FREEDOM.” Id. The back of

the monument includes the words “POW MIA,” and “YOU ARE NOT

FORGOTTEN,” as well as a silhouette of a bowed head, as depicted

below:


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Tisdale Decl. ¶ 10 and Ex. A attached thereto. The five

additional, smaller plaques each feature the insignia of one

branch of the military. Id. The monument, if approved would

stand four and a half feet tall, three feet wide, and eight

inches thick with an eight-inch think granite base. VC ¶ 82.

The Committee’s recommendation was forwarded to the full

City Council through a report, dated November 13, 2012, prepared

by Management Analyst Justin Carlson and approved by Interim City

Manager Thomas Evans (the “November 13 Report”). Decl. of Lake

Elsinore Mayor Brian Tisdale, Ex. 1. The November 13 Report

recommended that the City Council approve the “location, revised

design, and layout of the proposed Lake Elsinore veteran’s

memorial to be located at Diamond Stadium,” and recommended


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awarding the construction contract to Sun City Granite. Id. The

November 13 Report also included a “Discussion” section, which

stated:

The monument includes a historical depiction of a World War

II era solider at a cemetery kneeling at the grave of a

fallen comrade. The grave marker includes the symbol of a

cross. Behind the cross are additional grave markers that

include the “Star of David.” The depiction is intended to

reflect a purely historical context inspired by World War II

era military cemeteries, in particular, the American War

Cemetery near Omaha Beach, Normandy.

Id.

The November 13 Report was presented to the City Council at

a meeting held on November 13, 2012. VC ¶62. Several residents

addressed the City Council in support of the new design, many

specifically stating their support for the inclusion of the cross

and/or the Star of David. VC ¶¶ 64-72. Notably, Joyce Hohenadl—

the member of the Lake Elsinore Historical Society who had been

selected to co-chair the Redesign Committee—addressed the

Council, stating that “our ancestors came to this country with

their Christian-Judeo faiths, as Councilmember Melendez said . .

. . I’m afraid because of lawsuit threats we are being

blackmailed into sacrificing our heritage and our beliefs.”4 Id.

4Other comments made by members of the public included: “God

is the cross . . . . [those objecting to the cross] do not

deserve to take our freedom away to have our cross on the

monument,” VC ¶ 66; “[For] so few in this city . . . to think

that they are going to have the power [to remove the cross] and

not have been in the military. I don’t know where they came from



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At the conclusion of the public’s comments, several

councilmembers spoke. Councilmember Melendez noted that the

cross had been “controversial” but that the monument, as

proposed, honored “all veterans,” and concluded that Monument 2

had “nothing to do with religion.” VC ¶ 75. Councilmember Magee

noted that taxpayers would be on the hook for any lawsuits

against the city, but that Councilmember Melendez had reached out

to a group that had “offered to support us and defense us against

any of these actions at no cost to the city.” VC ¶ 77.

Councilmember Magee moved to approve the design; in so

moving, he stated that he had been persuaded by a member of the

public’s speech “about the cross.” VC ¶ 79. The City Council

then voted unanimously to approve the monument and contract with

Sun City Granite to construct the monument. VC ¶¶ 80-81.

The Verified Complaint does not state whether construction

of Monument 2 has begun. However, at this Court’s July 15, 2013

hearing on this matter, Defendant confirmed that Monument 2 has

not yet been erected.

. . . . [The cross] needs to say just the way it is . . . . This

is a symbol for all denominations of religion if anybody knows

anything about religion,” VC ¶ 69; “I am in favor of any design

promoting Bible morality.” VC ¶ 72.


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III. STANDING

“Article III of the U.S. Constitution confines federal

courts to hearing only ‘cases’ and ‘controversies.’ Standing is

a core component of the Article III case or controversy

requirement.” Barnum Timber Co. v. U.S. E.P.A., 633 F.3d 894,

897 (9th Cir. 2011) (citing Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992)). To establish constitutional standing,

plaintiffs must

demonstrate three elements, which constitute the

‘irreducible . . . minimum’ of Article III standing: (1)

injury-in-fact—plaintiff must allege ‘concrete and

particularized’ and ‘actual or imminent’ harm to a legally

protected interest; (2) causal connection—the injury must be

‘fairly traceable’ to the conduct complained of; and (3)

redressability—a favorable decision must be ‘likely’ to

redress the injury-in-fact.

Barnum Timber, 633 F.3d at 897 (citing Lujan, 504 U.S. at 560-61

and Allen v. Wright, 468 U.S. 737, 751 (1984)). Moreover, in

actions for injunctive and declaratory relief, “there is a

further requirement that [applicants] show a very significant

possibility of future harm; it is insufficient for them to

demonstrate only a past injury.” San Diego County Gun Rights

Committee v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996).

“The party invoking federal jurisdiction bears the burden of

establishing” standing. Lujan, 504 U.S. at 561 (citations

omitted). “Since [jurisdictional requirements] are not mere


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pleading requirements but rather an indispensable part of the

plaintiff’s case, each element must be supported in the same way

as any other matter on which the plaintiff bears the burden of

proof, i.e., with the manner and degree of evidence required at

the successive stages of the litigation.” Id. (citations

omitted). “Therefore, at the preliminary injunction stage, a

plaintiff must make a ‘clear showing’ of [the standing

elements].” Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010)

(citing Winter v. Natural Resources Def. Council, Inc., 555 U.S.

7, 22 (2008)). Moreover, “mere allegations will not support

standing at the preliminary injunction stage.” Doe v. National

Bd. of Medical Examiners, 199 F.3d 146, 152 (3d Cir. 1999).

Instead, the applicant must introduce “evidence demonstrating

more than a mere possibility” that jurisdiction is proper. Id.

at 153.

In Establishment Clause cases, plaintiffs may establish

standing by demonstrating that they will make “unwelcome direct

contact” with state-sponsored religion. See Vasquez v. Los

Angeles Cnty., 487 F.3d 1246, 1253 (9th Cir. 2007) (“We join the

majority of the circuits and hold that, in the Establishment

Clause context, spiritual harm resulting from unwelcome direct

contact with an allegedly offensive religious (or anti-religious)

symbol is a legally cognizable injury and suffices to confer

Article III standing.”); see also Catholic League for Religious &


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Civil Rights v. City & Cnty. of San Francisco, 624 F.3d 1043,

1049 (9th Cir. 2010) (“The concept of a ‘concrete’ injury is

particularly elusive in the Establishment Clause context because

the Establishment Clause is primarily aimed at protecting non-

economic interests of a spiritual, as opposed to a physical or

pecuniary, nature.”) (internal citations, quotation marks, and

alteration omitted).

Here, both individual Plaintiffs, Diana Hansen and John

Larsen, have submitted declarations stating that they have

previously attended events at the Stadium. Hansen states that

she intends to avoid going to the Stadium if Monument 2 is

erected because she does not wish to encounter Monument 2’s

religious message; Larsen states that he wishes to continue

attending events at the Stadium and will come into contact with

Monument 2 if he does so. Such declarations are plainly

sufficient to confer injury-in-fact. See Catholic League, 624

F.3d at 1049, 1053 (holding that plaintiffs had standing to

assert an Establishment Clause claim challenging the city’s

resolution that a Catholic cardinal “withdraw his discriminatory

and defamatory directive that Catholic Charities of the

Archdiocese of San Francisco stop placing children in in need of

adopting with homosexual households” where plaintiffs asserted

that they lived in San Francisco, were Catholic, and had “come in

contact with the resolution”). Moreover, because Larsen and


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Hansen are both members of the American Humanist Association, the

organization has standing to sue under the doctrine of

associational standing. See Oregon Advocacy Ctr. v. Mink, 322

F.3d 1101, 1109 (9th Cir. 2003) (“An association has standing to

bring suit on behalf of its members when: (a) its members would

otherwise have standing to sue in their own right; (b) the

interests it seeks to protect are germane to the organization’s

purpose; and (c) neither the claim asserted nor the relief

requested requires the participation of individual members in the

lawsuit.”) (internal citations and quotation marks omitted).

Moreover, there is little debate that Plaintiffs satisfy the

causation and redressability requirements of standing: Plaintiffs

“seek a declaratory judgment that the resolution is

unconstitutional,” and if this Court were to grant the requested

relief, “the official act of the government becomes null and

void.” Catholic League, 624 F.3d at 1053.

IV. PRELIMINARY INJUNCTION STANDARD

A preliminary injunction is “‘an extraordinary and drastic

remedy, one that should not be granted unless the movant, by a

clear showing, carries the burden of persuasion.’” Lopez v.

Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v.

Armstrong, 502 U.S. 968, 972 (1997) (per curiam) (citation


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omitted). A plaintiff seeking a preliminary injunction must

establish that it is 1) likely to succeed on the merits; 2)

likely to suffer irreparable harm in the absence of preliminary

relief; 3) that the balance of equities tips in his favor; and,

4) that an injunction is in the public interest. Winter v.

Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Farris v.

Seabrook, 677 F.3d 858, 864 (9th Cir. 2012) (same).

Although they are often articulated separately, the Ninth

Circuit has held that the first and third requirements—the

likelihood of success on the merits and the balance of equities—

should be considered in tandem. Alliance for the Wild Rockies v.

Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Under this

“sliding-scale” approach, these two elements “are balanced, so

that a stronger showing of one element may offset a weaker

showing of another.” Id. at 1131. Thus, the standard for

granting a preliminary injunction varies depending on the

relative harm and the likelihood of success on the merits. Id.

However, in order to succeed on an application for a preliminary

injunction, Plaintiffs must show that they are likely to suffer

irreparable harm and that the injunction is in the public

interest. Id. at 1135.


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V. IRREPARABLE HARM

In an Establishment Clause claim, the irreparable harm

analysis collapses into the merits analysis. See Chaplaincy of

Full Gospel Churches v. England, 454 F.3d 290, 304 (D.C. Cir.

2006) (holding that a “party alleging a violation of the

Establishment Clause per se satisfies the irreparable injury

requirement of the preliminary injunction calculus”); see also

Klein v. City of San Clemente, 584 F.3d 1196, 1207-08 (9th Cir.

2009) (“Both this court and the Supreme Court have repeatedly

held that the loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable injury.”)

(internal citations, alteration, and quotation marks omitted).

Accord ACLU of Ky. v. McCreary County, 354 F.3d 438, 445 (6th

Cir. 2003), aff’d on other grounds, 545 U.S. 844 (2005);

Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th

Cir. 1996); Parents’ Ass’n of P.S. 16 v. Quinones, 803 F.2d 1235,

1242 (2d Cir. 1986). Thus, in determining whether Plaintiffs are

likely to suffer irreparable harm, this Court must consider

whether Plaintiffs are likely to succeed on the merits.


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VI. LIKELIHOOD OF SUCCESS ON THE MERITS: THE FEDERAL

CONSTITUTION’S ESTABLISHMENT CLAUSE5

The Establishment Clause of the First Amendment provides

that “Congress shall make no law respecting establishment of

religion.” U.S. CONST. amend. I. “As the Supreme Court has

explained, the ‘touchstone’ of Establishment Clause jurisprudence

is the requirement of ‘governmental neutrality between religion

and religion, and between religion and nonreligion.’” Trunk v.

City of San Diego, 629 F.3d 1099, 1105-06 (9th Cir. 2011)

(quoting McCreary County v. ACLU, 545 U.S. 844, 860 (2005)

(citations and internal quotation marks omitted)). In analyzing

Establishment Clause claims, courts “do not apply an absolute

rule of neutrality because doing so would evince a hostility

toward religion that the Establishment Clause forbids.” Trunk,

629 F.3d at 1106. Neutrality, the Supreme Court has noted, “‘is

not so narrow a channel that the slightest deviation from an

absolutely straight course leads to condemnation’” by the First

Amendment. McCreary, 545 U.S. at 876 (quoting Sherbert v.

Verner, 374 U.S. 398, 422 (1963) (Harlan, J., dissenting)); see

5 Plaintiffs have moved for a preliminary injunction under

both the Federal Constitution’s Establishment Clause as well as

the California Constitution’s Establishment, No Preference, and

No Aid Clauses. Because the Court finds that the relief

requested may be granted under the Federal Constitution’s

Establishment Clause claim, it declines to reach Plaintiffs’

California Constitution claims.


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also Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 971 (9th

Cir. 2011) (“The Establishment Clause does not wholly preclude

the government from referencing religion. Rather, what the Clause

requires is governmental neutrality . . . .”) (internal citations

and quotation marks omitted).

“However, because ‘neutrality’ is a general principle, it

cannot possibly lay every issue to rest, or tell [courts] what

issues on the margins are substantial enough for constitutional

significance.” Trunk, 629 F.3d at 1106 (internal citations and

quotation marks omitted). Rather, in assessing whether a public

monument violates the Establishment Clause, courts are guided by

“two related constructs” articulated by the Supreme Court: “the

test set forth in Lemon [v. Kurtzman, 403 U.S. 602 (1971)],

which—through various twists and turns—has long governed

Establishment Clause claims, and the analysis for monuments and

religious displays more recently articulated in Van Orden [v.

Perry, 545 U.S. 677 (2005)].” Trunk, 629 F.3d at 1106.

The Lemon test

asks whether the action or policy at issue (1) has a secular

purpose, (2) has the principal effect of advancing religion,

or (3) causes excessive entanglement with religion. In

recent years, the Supreme Court essentially has collapsed

these last two prongs to ask “whether the challenged

governmental practice has the effect of endorsing religion.”

Trunk, 629 F.3d at 1106 (quoting Access Fund v. U.S. Dep’t of

Agric., 499 F.3d 1036, 1043 (9th Cir. 2007)). “Although Lemon


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has been strongly criticized, the Supreme Court has never

overruled it, and in fact applied the Lemon test to a Ten

Commandments display in an opinion issued the same day as Van

Orden.” Trunk, 629 F.3d at 1106 (citing McCreary, 545 U.S. at

859-64).

In Van Orden,

the Court declined to apply Lemon to a Ten Commandments

monument on the grounds of the Texas State Capitol.

Addressing whether that monument violated the Establishment

Clause, the plurality struggled with reconciling “the strong

role played by religion and religious traditions throughout

our Nation's history” with the constitutional separation of

church and state. Van Orden, 545 U.S. at 683. The plurality

concluded that the Lemon test was “not useful in dealing

with the sort of passive monument that Texas ha[d] erected

on its Capitol grounds.” Id. at 686. Instead, its analysis

focused on “the nature of the monument and . . . our

Nation’s history.” Id. Taking into consideration the role

of God and the Ten Commandments in the nation’s founding and

history, the monument’s passive use, and its “undeniable

historical meaning,” id. at 690, the plurality concluded

that the display passed constitutional muster.

Trunk, 629 F.3d at 1106-07. However, in a separate concurrence—

Van Orden’s controlling opinion, see Trunk, 629 F.3d at 1107—

Justice Breyer delineated a set of “difficult borderline cases”

like the monument at issue in Van Orden for which there could be

“no-test related substitute”—Lemon or otherwise—“for the exercise

of legal judgment.” Van Orden, 545 U.S. at 700 (Breyer, J.,

concurring in judgment). Such cases, Justice Breyer concluded,

demand “a fact-intensive assessment of whether [a particular

monument is] faithful to the underlying purposes of the

Establishment Clause.” Trunk, 629 F.3d at 1107. This “flexible


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assessment entails a range of factors, including the monument’s

purpose, the perception of that purpose by viewers, the extent to

which the monument’s physical setting suggests the sacred, and

the monument’s history.” Id. This inquiry “does not dispense

with the Lemon factors, but rather retains them as ‘useful

guideposts.’” Id. (quoting Van Orden, 545 U.S. at 700 (Breyer,

J., concurring in judgment)).

Thus, as the Ninth Circuit has held, Van Orden “establishes

an ‘exception’ to the Lemon test in certain borderline cases

regarding the constitutionality of some longstanding plainly

religious displays that convey a historical or secular message in

a non-religious context.” Trunk, 629 F.3d at 1107.

Unfortunately, “Justice Breyer did not explain in detail how to

determine whether a case was borderline and thus less appropriate

for the typical Lemon analysis.” Id.

However, like the Ninth Circuit in Trunk, this Court need

not decide whether Lemon or Van Orden controls. At a minimum,

both tests require this Court to 1) determine whether the City’s

purpose in including the Latin crosses and the Star of David was

secularly motivated; and, 2) “engage in a factually specific

analysis of [Monument 2’s] history and setting.” Trunk, 629 F.3d

at 1107. If Plaintiffs are likely to succeed either in

demonstrating that the Latin crosses and Star of David were

included primarily for religious reasons, or that the effect of


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their inclusion is to endorse religion based on Monument 2’s

“history and setting,” then this Court may grant their motion for

preliminary injunction. For the reasons put forward below, the

Court concludes that it is likely that Plaintiffs will succeed on

under both prongs of the Lemon-Van Orden framework.

A. Purpose

1. Legal Standard

Under both Lemon and Van Orden, courts must first “inquire

as to the purpose of the government action to determine whether

it is predominantly secular in nature.” Trunk, 629 F.3d at 1107.

This inquiry

does not call for “any judicial psychoanalysis of a

drafter’s heart of hearts.” Rather, “[t]he eyes that look

to purpose belong to an objective observer, one who takes

account of the traditional external signs that show up in

the text, legislative history, and implementation of the

statute, or comparable official act.”

Trunk, 629 F.3d at 1108 (quoting McCreary, 545 U.S. at 862).

Although courts are “normally deferential to a State’s

articulation of a secular purpose, it is required that the

statement of such purpose be sincere and not a sham.” Edwards v.

Aguillard, 482 U.S. 578, 586-87 (1987). Thus, in assessing the

purpose of a challenged governmental action, this Court need not

credit “new statements of purpose . . . presented only as

litigating positions[.]” McCreary, 545 U.S. at 871. Instead, it

must take into account the “traditional external signs that show


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up in the text [and] legislative history . . . . [and] the

statute’s words, enlightened by their context and the

contemporaneous legislative history . . . and the sequence of

events leading up” to action at issue. Id. (emphasis added).

2. Analysis

Defendant argues that the Latin crosses and Star of David

featured in Monument 2 are meant to honor veterans of World War

II. In support of this contention, Defendant points to the

November 13 Report, which states that the Latin crosses and the

Star of David are “intended to reflect a purely historical

context inspired by World War II era military cemeteries, in

particular, the American War Cemetery near Omaha Beach,

Normandy.”

This purported secular purpose is belied by the sequence of

events leading up to the approval of the November 13 Report.

From the evidence available, it appears that the November 13

Report was the first time that any individual in the City—staff,

elected officials, or otherwise—suggested that the Latin crosses

and Star of David were meant to honor World War II in particular.

The record contains no indication that, when the City Council

first began discussing the possibility of creating a war memorial

in April of 2012, it specifically wished to honor or commemorate

World War II veterans. Nor is there any mention of World War II

at any one of the many city-sponsored meetings that took place


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before the November 13 Report was prepared. For example, when

the City Council directed city staff to research potential

designs for the war memorial at its May 7, 2012 meeting, there is

no indication that the Council asked for the monument to honor or

refer to World War II veterans. Similarly, when the Council

discussed the proposed designs at its July 10, 2012 meetings, and

the proposed redesign (Monument 1) at its October 23, 2012

meeting, there is no indication that any councilmember so much as

suggested that the Latin crosses and Star of David were meant to

allude to World War II veterans in particular. Indeed, in the

report that recommended approval of Monument 1 (which was

presented to the City Council at its October 23 meeting), there

is no mention of World War II veterans whatsoever.

The allegedly secular purpose of featuring the Latin crosses

and Star of David on Monument 2 is further undermined by

statements made at both the October 23 and November 13, 2012 City

Council meetings. At least three councilmembers made specific

statements that they wanted to keep the Latin cross as part of

the monument because of its religious symbolism. At one point,

Councilmember Melendez stated that it was a “sad reflection on

our society when as a Christian nation, one of the principles

upon which we were founded is something we are forced to hide in

society specifically with reverence to our veterans, the very

people who have fought to protect our religious freedom.” Later


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on, in light of the city attorney’s repeated warnings that

inclusion of the cross would create a First Amendment “issue,”

Councilmember Melendez responded, “I think at some point you have

to take a stand,” and moved to approve the project “as is.”6

Similarly, the comments of then-Mayor Pro Tem Hickman

demonstrate that the purpose of including the cross in Monument 2

was religiously motivated. At one point, Hickman stated: “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 is leaning that way.” Later, Hickman stated, “I’m not

going to sit here and wait for people to denigrate my beliefs,”

and, after being told that his suggestion that staff be given two

weeks to redesign the monument was infeasible, concluded “Then we

don’t have to change it.” Finally, at the October 23, 2012

meeting, Mayor Tisdale stated, “it upsets me that we have to play

the pettiness of the cross and talk about the Christianity of

it.”

Finally, the City’s insistence that the Latin crosses and

Star of David were included for secular, rather than religious,

6 Melendez’s conclusory statement at the November 13, 2012

meeting that the Latin crosses and Star of David on Monument 2

had “nothing to do with religion,” cannot erase her articulated

desire, made just three weeks earlier, to “take a stand” in

support of Christianity, especially in light of her repeated

statements that she would only vote to remove the Latin cross

because the city attorney informed her that it would create a

First Amendment “issue.”


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purposes is undermined by comments made at the November 13

meeting itself. In voicing his approval for Monument 2,

Councilmember Magee stated that he had been persuaded by a local

resident’s plea to approve the monument, in which she had

“talk[ed] about her cross.” Similarly, in her address to the

Council, Joyce Hohenadl—the member of the Lake Elsinore

Historical Society who had been selected to co-chair the Redesign

Committee—stated that “our ancestors came to this country with

their Christian-Judeo faiths,” and that she was “afraid because

of lawsuit threats we are being blackmailed into sacrificing our

heritage and our beliefs.” Although not an elected official

herself, Hohenadl’s position as co-chair of a city-created

committee further lends support to the conclusion that the

primary purpose of including the Latin crosses and the Star of

David was to promote religion.

To conclude that the Latin crosses and Star of David on

Monument 2 were included to honor World War II veterans in

particular, this Court would have to ignore the entire sequence

of events leading up to the approval of the November 13 Report.

This Court must decline the City’s invitation to do so; indeed,

in McCreary, the Supreme Court rejected a similar suggestion that

courts should limit the purpose inquiry to only “the latest news

about the last in a series of governmental actions, however close

they may all be in time and subject.” Id. at 866. As the


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Supreme Court explained in McCreary,

the world is not made brand new every morning, and the

Counties are simply asking us to ignore perfectly probative

evidence; they want an absentminded objective observer, not

one presumed to be familiar with the history of the

government’s actions and competent to learn what history has

to show. The Counties’ position just bucks common sense:

reasonable observers have reasonable memories, and our

precedents sensibly forbid an observer to turn a blind eye

to the context in which the policy arose.

McCreary, 545 U.S. at 866 (internal citations, quotation marks,

and alterations omitted). The comments made at the October 23

Council meeting, as well as the eleventh-hour attempt to

articulate a secular purpose for the City’s decision to include

the Latin crosses and the Star of David on Monument 2,

demonstrate that the City’s desire to include these patently

religious symbols was religiously motivated. See Green v.

Haskell Cnty. Bd. Of Comm’rs, 568 F.3d 784, 801 (10th Cir. 2009)

(holding that the purpose of erecting a monument featuring the

Ten Commandments and the Mayflower Compact was primarily

religious based on “quotes from the[] commissioners [that]

appear[ed] in news reports, ranging from statements reflecting

their determination to keep the Monument, (‘I won't say that we

won’t take it down, but it will be after the fight.’), to

statements of religious belief, (‘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.’ ‘God died for


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me and you, and I'm going to stand up for him.’)”); see also

McCreary (rejecting the county government’s argument that the

purpose of including the Ten Commandments as part of a display,

which included copies of the Magna Carta, the Declaration of

Independence, and others, in front of the courthouse was “to

educate the citizens of the county regarding some of the

documents that played a significant role in the foundation of our

system of law and government” because the non-sectarian documents

had only been included after the counties were sued on account of

two earlier displays, one featuring solely the Ten Commandments

and the other featuring solely religious texts). This is not a

case where “savvy officials had disguised their religious intent

so cleverly that the objective observer just missed it.”

McCreary, 545 U.S. at 863. To the contrary, the “openly

available data,” id., demonstrates a full-throated desire to

include the Latin crosses and Star of David because of their

religious symbolism.

Three additional facts lend support to the conclusion that

the Latin crosses and Star of David were included on the monument

for religious purposes. First is the presence of the Latin

crosses and Star of David themselves. Several courts—including

the Supreme Court—have noted that the presence of patently

religious symbols, such as the Latin cross, suggest that the

purpose of erecting a monument is religious motivated. See


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McCreary, 545 U.S. at 869 (parsing the text of the Ten

Commandments in a purpose analysis and noting that while the

Commandments “have had influence on civil or secular law,” the

“original text viewed in its entirety is an unmistakably

religious statement dealing with religious obligations and with

morality subject to religious sanction”); Am. Civil Liberties

Union of Georgia v. Rabun Cnty. Chamber of Commerce, Inc., 698

F.2d 1098, 1110-11 (11th Cir. 1983) (noting that the presence of

a cross, in connection with other evidence, supported a finding

that the purpose of constructing a cross was primarily

religious); Mendelson v. City of St. Cloud, 719 F. Supp. 1065,

1069 (M.D. Fla. 1989) (“The Latin cross is unmistakably a

universal symbol of Christianity. Each witness at trial,

including a Catholic Priest and a Jewish Rabbi, testified that

they could perceive of no secular purpose for a Latin cross. Such

a cross has always been a symbol of Christianity, and it has

never had any secular purpose.”).

Second, the inclusion of sectarian symbols when none were

required further suggests that the inclusion of the cross was

religiously motivated. See Larkin v. Grendel’s Den, Inc., 459

U.S. 116, 124 (1982) (discrediting the government’s purported

secular purpose because it could be “readily accomplished by

other [non-sectarian] means”). If the City specifically wishes

to honor World War II veterans, there are a host of other images


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that would plainly serve this purpose without using religious

symbols.

Finally, the comments made by members of the public at the

November 13 meeting further suggest that the Latin crosses and

Star of David were religiously motivated. See Epperson v. State

of Ark., 393 U.S. 97, 108 (1968) (concluding that “sectarian

conviction was and is” the reason that a statute outlawing the

teaching of evolution was passed based on statements from the

law’s advocates that “teaching of evolution would be subversive

of Christianity” and would “cause school children to disrespect

the Bible”) (internal citations and quotation marks omitted).

Several comments made by members of the public specifically

invoked Christianity, as local residents urged their

representatives to approve Monument 2 because of its religious

symbolism. See VC ¶¶ 64-72 (alleging that at the November 13

meeting, members of the public, in voicing their support for the

inclusion of the Latin cross and/or Star of David on Monument 2,

stated “God is the cross . . . . [those objecting to the cross]

do not deserve to take our freedom away to have our cross on the

monument”; “[For] so few in this city . . . to think that they

are going to have the power [to remove the cross] and not have

been in the military. I don’t know where they came from . . . .

[The cross] needs to say just the way it is . . . . This is a

symbol for all denominations of religion if anybody knows


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anything about religion”; and, “I am in favor of any design

promoting Bible morality”).7

3. Conclusion: Primary Purpose

In sum, in light of the sequence of events leading up the

approval of the November 13 Report, it is likely that Plaintiffs

will be able to demonstrate that the Latin crosses and Star of

David were included on Monument 2 because of their religious

symbolism.

B. Effect of Endorsing Religion

In assessing whether the Monument has the “effect of

endorsing religion,” courts ask “whether it would be objectively

reasonable for the government action to be construed as sending

primarily a message of either endorsement or disapproval of

religion.” Trunk, 629 F.3d at 1109. “Endorsement” does not

concern “all forms of government approval of religion,” but

rather only those acts “that send the stigmatic 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.” Id. Like the purpose

7 Although the Ninth Circuit has warned that the connection

between advocacy and legislation is often “complex, attenuated,

and mediated,” Trunk, 629 F.3d at 1109, it has recognized that

religious advocacy “can form part of the context for determining

an act’s purpose.” Id. (emphasis added). Here, the public’s

comments provide only additional proof—beyond the comments of the

legislators themselves—that Monument 2 features the Latin cross

and Star of David for religious reasons.


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inquiry, this prong of the Lemon test is made from the

“perspective of an informed and reasonable observer who is

familiar with the history of the government practice at issue.”

Id. at 1110 (internal citations and quotation marks omitted).

In conducting this analysis, this Court must consider “fine-

grained, factually specific features of” Monument 2, “including

the meaning or meanings of the Latin cross [and the Star of David

on the monument], the [monument’s] history, its secularizing

elements, its physical setting, and the way the [monument] is

used.” Id.

1. The Latin Cross

Defendant does not, and cannot, dispute that the Latin cross

is “the preeminent symbol of Christianity.” Trunk, 629 F.3d at

1110. Indeed, as the Ninth Circuit concluded just two years ago,

every single court of appeals that has considered challenges to

Latin crosses has concluded that the Latin cross is a Christian

symbol. Id. (citing Robinson v. City of Edmond, 68 F.3d 1226,

1232 (10th Cir. 1995); Murray v. City of Austin, 947 F.2d 147,

149 (5th Cir. 1991); Harris v. City of Zion, 927 F.2d 1401, 1403

(7th Cir. 1991); Rabun, 698 F.2d at 1110–11); see also (Jewish

War Veterans of the U.S. v. United States, 695 F. Supp. 3, 12

(D.D.C.1988) (“Running through the decisions of all the federal

courts addressing the issue is a single thread: that the Latin

cross ... is a readily identifiable symbol of Christianity.”).


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Moreover, the cross is an exclusively “Christian symbol, and not

a symbol of any other religion.” Trunk, 629 F.3d at 1111

(internal citations and quotation marks omitted).

However, the more relevant question in the effects inquiry

is the same one confronted by the Ninth Circuit in Trunk: whether

the Latin cross has a “broadly-understood ancillary meaning as a

symbol of military service, sacrifice, and death.” Trunk, 629

F.3d at 1111. After conducting an exhaustive inquiry as to the

history of the cross and its use, or absence, in memorials

honoring fallen soldiers, the Ninth Circuit concluded that the

Latin cross “does not possess an ancillary meaning as a secular

or non-sectarian war memorial.” Trunk, 629 F.3d at 1116

(emphasis added). While acknowledging that “[m]ilitary

cemeteries have not, of course, remained entirely free of

religious symbolism,” the Ninth Circuit concluded that there was

simply no evidence that the cross had been “widely embraced by—or

even applied to—non-Christians as a secular symbol of death.”

Id. at 1113, 1116. Thus, while the Latin cross can serve “as a

powerful symbol of death and memorialization,” it nonetheless

“remains a sectarian, Christian symbol.” Id.; see also Am.

Atheists, Inc. v. Duncan, 616 F.3d 1145, 1161 amended and

superseded on other grounds on reh’g sub nom. Am. Atheists, Inc.

v. Davenport, 637 F.3d 1095 (10th Cir. 2010) (“[A] memorial cross


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is not a generic symbol of death; it is a Christian symbol of

death that signifies or memorializes the death of a Christian.”).8

2. The Star of David

The Star of David has received much less attention than the

Latin cross. However, those courts that have considered

challenges to monuments featuring the Star of David have

concluded that it is a “religious symbol” that conveys “purely

religious messages.” Greater Houston Chapter of Am. Civil

Liberties Union v. Eckels, 589 F. Supp. 222, 235 (S.D. Tex.

1984).

Defendant has made no argument that the Star of David does

not have such a message; nor have they provided any evidence that

the Star of David has a “broadly-understood ancillary meaning as

a symbol of military service, sacrifice, and death.” Thus, the

inclusion of the Star of David adds to the monument’s effect of

endorsing religion. See Cnty. of Allegheny v. Am. Civil

Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 615

8 The Trunk Court came to this conclusion while acknowledging

that “the image of row upon row of small white crosses amongst

poppies,” as well as Stars of David, had been used to memorialize

American soldiers who fell in battle during each World War. This

history, however, did not alter its conclusion that the Latin

cross and Star of David were not broadly understood as symbols of

military sacrifice and honor; instead, they marked “individual

graves, not a universal monument to the war dead.” Trunk, 629

F.3d at 1113. Moreover, the Ninth Circuit concluded, “the

universal symbol emanating from those foreign wars is the poppy,

not the cross.” Id.


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(1989) (“The simultaneous endorsement of Judaism and Christianity

is no less constitutionally infirm than the endorsement of

Christianity alone.”).

3. The Monument, its History, and its Physical Setting

The conclusion that “the Latin cross is a Christian

religious symbol of remembrance or memorialization [or that the

Star of David, a Jewish one] does not, of course, end the

matter.” Trunk, 629 F.3d at 1117.9 “Secular elements, coupled

9 It does, however, form a considerable obstacle to

Defendant’s chances of prevailing. Defendant has not identified

a single case in which a Latin cross included in a government

monument, seal, or other public display has been upheld against

an Establishment Clause challenge. Although the Court has found

one, Murray v. City of Austin, Tex., 947 F.2d 147 (5th Cir.

1991), the vast majority of cases to have considered the presence

of Latin crosses on city monuments, seals, or displays have found

them to be unconstitutional. See, e.g. County of Allegheny v.

Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S.

573, 599 (1989) (noting that erection of a cross on government

property would clearly violate the Establishment Clause); Am.

Atheists, Inc. v. Duncan, 616 F.3d 1145 amended and superseded on

other grounds on reh’g sub nom. Am. Atheists, Inc. v. Davenport,

637 F.3d 1095 (10th Cir. 2010) (individualized memorial crosses

for state troopers on public roadside unconstitutional);

Separation of Church & State Comm. v. City of Eugene, 93 F.3d 617

(9th Cir. 1996) (war memorial cross erected by private group in

public park unconstitutional); Gonzales v. N. Twp. of Lake Cnty.,

Ind., 4 F.3d 1412 (7th Cir. 1993) (war memorial crucifix in

public park unconstitutional); ACLU v. Rabun County Chamber of

Commerce, Inc., 698 F.2d 1098 (11th Cir. 1983) (cross erected by

private group unconstitutional); Jewish War Veterans of U.S. v.

United States, 695 F. Supp. 3 (D.D.C. 1988) (war memorial cross

on military base unconstitutional); Greater Houston Chapter of

ACLU v. Eckels, 589 F. Supp. 222 (S.D. Tex. 1984) (war memorial

containing three crosses and Star of David in public park

unconstitutional); see also infra Section VI.B.3.c (discussing

cases in which small crosses on city insignias and seals have

been held unconstitutional). Moreover, the Latin cross that was



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with the history and physical setting of a monument or display,

can—but do not always—transform sectarian symbols that otherwise

would convey a message of government endorsement of a particular

religion.” Id.

Thus, for example, in County of Allegheny v. Am. Civil

Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989),

the “Supreme Court upheld a holiday display—located outside a

public building—consisting of an eighteen foot menorah, a forty-

five foot Christmas tree that the Court deemed a typically

secular emblem of the holidays, and a sign saluting liberty.”

Trunk, 629 F.3d at 1117 (citing Allegheny, 492 U.S. at 616–17).

“Although Justice O'Connor’s controlling opinion considered the

menorah to be an entirely sectarian object, she determined that

the display as a whole communicated a secular message. In the

same way that a museum might convey the message of art

appreciation without endorsing a religion even though individual

paintings in the museum have religious significance, the holiday

display in Allegheny conveyed a message of religious pluralism

and freedom, even though some elements of the display were

sectarian.” Trunk, 629 F.3d at 1117 (citing Allegheny, 492 U.S.

part of the city’s seal in Murray was upheld for a specific

historical reason: it was one (of several) symbols featured in

the coat of arms of the city’s namesake—Stephen F. Austin.

Murray, 947 F.2d at 149. No similar evidence exists here.


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at 635 (O’Connor, J., concurring in part and concurring in the

judgment)).

Significantly, the history, as well as the physical setting

and secularizing elements of a monument, were central to Justice

Breyer’s conclusion that the Ten Commandments display at issue in

Van Orden did not violate the Establishment Clause. Unlike the

“short (and stormy) history of the courthouse Commandments’

displays” at issue in McCreary, Justice Breyer relied upon the

fact that “40 years passed in which the presence of this

monument, legally speaking, went unchallenged,” in concluding

that the display in Van Orden passed constitutional muster. Van

Orden, 545 U.S. at 702-03 (Breyer, J., concurring in the

judgment); see also id. (stating that the lack of legal challenge

to the monument was “determinative” in that case). Furthermore,

Justice Breyer noted that the Ten Commandments statute at issue

in Van Orden was one of seventeen monuments and twenty-one

historical markers scattered over the Texas State Capitol

grounds, each of which “was designed to illustrate the ‘ideals’

of those who settled in Texas and of those who have lived there

since that time.” Id. at 702. Justice Breyer concluded that,

because it was one of only several monuments, each of which

featured only secular and historical images and text, the Ten

Commandments display “communicates to visitors that the State

sought to reflect moral” rather than religious, principles. Id.


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Determining whether secular elements, as well as history and

physical setting, neutralize the religious effect of patently

religious symbols (such as the Latin cross or Star of David) is

an inherently case-specific inquiry; no two monuments, displays,

or symbols are the same. This individualized inquiry asks

whether “the entirety of [Monument 2], when understood against

the background of its particular history and setting, projects a

government endorsement of” religion, “taking into consideration

its entire context, not simply those elements that suggest a

secular message.” Trunk, 629 F.3d at 1118.

a. Monument 2’s History

“The Supreme Court has instructed that, when assessing the

effect of a religious display, [courts] must consider history

carefully: ‘reasonable observers have reasonable memories, and

the Court’s precedents sensibly forbid an observer to turn a

blind eye to the context in which the policy arose.’” Trunk, 629

F.3d at 1118 (quoting McCreary, 545 U.S. at 866).

Monument 2 has a relatively brief history; indeed, it has

yet to be erected. Nonetheless, this brief history has been

marked by religious overtones that likely would lead an objective

observer to “perceive a religious message” from the presence of

the Latin cross and the Star of David on Monument 2. Trunk, 629

F.3d at 1118. The legislative history, and the comments of the

City’s elected leaders leading up to the approval of the November


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13 Report, would lead a reasonable observer to believe that

Monument 2 endorses Christianity and Judaism. See Van Orden, 545

U.S. at 703 (Breyer, J., concurring in the judgment) (“[T]he

short (and stormy) history of the courthouse Commandments’

displays [at issue in McCreary] demonstrates the substantially

religious objectives of those who mounted them, and the effect of

this readily apparent objective upon those who view them.”).

Indeed, the comments made by councilmembers themselves

demonstrate that the Latin cross (at least) sends a message of

endorsing religion: on at least two occasions, Councilmember

Magee moved to “remove the religious reference” in Monument 1.

Similarly, the comments of the members of the public at the

various hearings reflect a message of religious endorsement: as

the Ninth Circuit observed in Trunk, “starkly religious” comments

made in support of a governmental action by members of the public

are probative of whether an objectively reasonable observer would

conclude that a monument sends a message of endorsing religion.

Trunk, 629 F.3d at 1120.10

10 Indeed, the comments made in this case mirror those made

by various advocacy groups in Trunk. Compare Trunk, 629 F.3d at

1120 (noting that, at a meeting considering whether to transfer

the land on which the cross-featuring war memorial at issue from

the City of San Diego to Congress, participants advocated for the

transfer by “invoking the Cross’s importance as a Christian

symbol, and denouncing their opponents as ‘Satanists’ or ‘haters

of Christianity[,]’” and later, when the transfer was complete,

“the Christian Coalition ‘commend[ed] the great efforts . . . in

saving this historic symbol of Christianity in America’”) with



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Finally, unlike the monument in Van Orden, which stood for

forty years before a legal challenge was surmounted, Monument 2

was challenged in court before it was even erected, further

lending support to the conclusion that it would communicate to a

reasonable observer a message of religious endorsement.

b. Monument 2’s Physical Settings

Moreover, unlike the Ten Commandments display in Van Orden,

there is no evidence that Monument 2’s physical setting mitigates

an otherwise religious message. Monument 2 is slated to stand

alone in front of the Stadium; there are no surrounding war

memorials or other displays that might communicate to the

reasonable viewer that the City sought to reflect secular and

historical messages, rather than religious ones. See also Trunk,

629 F.3d at 1114 (suggesting, though not ruling, that the three

crosses at Arlington National Cemetery might withstand

constitutional scrutiny because they were not the “predominant

Verified Complaint, ¶¶ 64-72 (alleging that at the November 13

meeting, members of the public, in voicing their support for the

inclusion of the Latin cross and/or Star of David on Monument 2,

stated “God is the cross . . . . [those objecting to the cross]

do not deserve to take our freedom away to have our cross on the

monument”; “[For] so few in this city . . . to think that they

are going to have the power [to remove the cross] and not have

been in the military. I don’t know where they came from . . . .

[The cross] needs to say just the way it is . . . . This is a

symbol for all denominations of religion if anybody knows

anything about religion”; and, “I am in favor of any design

promoting Bible morality”).


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feature of the cemetery,” as they stood next to the “countless

headstones of soldiers buried in Arlington and alongside a large

number of other monuments that do not incorporate religious

imagery”) (emphasis added); id. at 1114, 1115 n.15 (suggesting,

though not ruling, that two crosses at Gettysburg National

Military Park might withstand constitutional challenge because

they were surround by over one hundred other monuments that did

not feature the cross, and noting that one of the crosses was a

“Celtic cross and may celebrate the Irish origin of the soldiers

instead of religion”).

c. Monument 2’s Secularizing Elements

Defendant’s strongest argument that the monument “as a

whole” communicates a secular message comes from the relatively

modest size of the Latin crosses and the Star of David

themselves. Although the exact dimensions are unclear, it

appears that the Latin crosses and Star of David take up no more

than a third of the image that appears on the front of Monument

2, which is otherwise covered with text and pictures that, as

Plaintiffs concede, are secular. Thus, unlike the Latin cross in

Trunk—which, at forty-three feet high and twelve feet across,

dominated the smaller black walls and brick stones surrounding

it—the Latin crosses and Star of David are arguably not Monument

2’s “central feature.” Trunk, 629 F.3d at 1123.


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However, the sectarian features of a display need not

dominate them to send a religious message. Thus, in Harris v.

City of Zion, Lake Cnty., Ill., 927 F.2d 1401 (7th Cir. 1991),

the Seventh Circuit concluded that a city’s seal—a four-leaf

clover that featured a leaf in one quadrant, a water tower and

two industrial buildings in another, a school in a third, and a

church with a cross in front of it in the fourth—had the effect

of endorsing religion. Id. at 1412-13 (“The images on the seal

are not just neutral snapshots of the community; they are charged

with endorsement . . . . To any observer, the Rolling Meadows

seal expresses the City’s approval of those four pictures of City

life—its flora, its schools, its industry and commercial life,

and its Christianity.”). Harris is consistent with a host of

other cases finding that the primary effect of including

sectarian symbols was to send a message of religious endorsement,

even where the symbols did not dominate the monument or display.

See Robinson v. City of Edmond, 68 F.3d 1226, 1228 (10th Cir.

1995) (holding that a circular seal that contained four

quadrants, only one of which depicted a sectarian symbol (the

Latin cross) had the effect of endorsing religion); Murphy v.

Bilbray, 782 F. Supp. 1420 (S.D. Cal. 1991) aff’d sub nom. 990

F.2d 1518 (cross on city insignia unconstitutional); ACLU v. City

of Stow, 29 F. Supp. 2d 845 (N.D. Ohio 1998) (same).


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Moreover, the fact that the Latin crosses and Star of David

do not dominate Monument 2 cannot take away from the unmistakably

religious message they send to any objective viewer. The Latin

crosses and Star of David are immediately noticeable to even the

most causal passer-by; they appear on the front of Monument 2,

and, in contrast to the concededly non-sectarian images that

appear on the front of Monument 2—the text, the American flag,

and the bald eagle—the sectarian symbols are illuminated in

white. Indeed, the only image other than the Latin crosses and

Star of David that is highlighted in white—a solider kneeling at

in front of the Latin crosses and Star of David—serves only to

reinforce the religious message that Monument 2 communicates to

an objective observer

The use of such distinctively Christian and Jewish symbols

to honor all veterans sends a strong message of endorsement

and exclusion. It suggests that the government is so

connected to a particular religion that it treats that

religion’s symbolism as its own, as universal . . . . By

claiming to honor all service members with a symbol that is

intrinsically 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 of the political

community.

Trunk, 629 F.3d at 1124-25; see also American Atheists, 616 F.3d

at 1160–61 (“[T]he fact that all of the fallen ... troopers are

memorialized with a Christian symbol conveys a message that there

is some connection between [the state] and Christianity); Greater

Houston Chapter of Am. Civil Liberties Union v. Eckels, 589 F.


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Supp. 222, 235 (S.D. Tex. 1984) (noting that the primary effect

of crosses and Stars of David used as war memorials “is to give

the impression that only Christians and Jews are being honored by

the country”).

4. Conclusion: Effect of Endorsement

Thus, upon consideration of the meanings of the Latin cross

and Star of David, as well as Monument 2’s history, secularizing

elements, and physical setting, Plaintiffs are likely to prevail

on their contention that a reasonable observer would perceive

Monument 2 as “sending primarily a message of” endorsing

religion.

VII. BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST

The final two factors of the preliminary injunction analysis

also weigh in favor of granting the preliminary injunction.

Here, the balance of the equities tips sharply in favor of

granting a preliminary injunction. As discussed above,

Plaintiffs are likely to succeed on their Establishment Clause

claim; thus, any erection of Monument 2 would violate their First

Amendment rights. Indeed, a preliminary injunction is

particularly appropriate in this case, where Monument 2 has yet

to be installed in front of the Stadium. Enjoining the City from

erecting the monument, at least for the period in which the


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parties conduct this litigation, preserves tax dollars that would

be unrecoverable once Monument 2 has been erected, and avoids the

need to tear down Monument 2 after it is already built. See

Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249,

261 (4th Cir. 2003) (holding that the government is “in no way

harmed by issuance of a preliminary injunction which prevents it

from enforcing a regulation, which, on this record, is likely to

be found unconstitutional”).

Finally, the Court finds that the public interest weighs in

favor of granting the preliminary injunction. See Sammartano v.

First Judicial Dist. Court, in & for Cnty. of Carson City, 303

F.3d 959, 974 (9th Cir. 2002) (“Courts considering requests for

preliminary injunctions have consistently recognized the

significant public interest in upholding First Amendment

principles.”); see also Newsom, 354 F.3d at 261 (4th Cir. 2003)

(“The final prerequisite to the grant of a preliminary injunction

is that it serve the public interest. Surely, upholding

constitutional rights serves the public interest.”).


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VIII. CONCLUSION

For the reasons put forward in this Order, Plaintiffs’

motion for a preliminary injunction is GRANTED. Defendant, as

well as any successors or assigns, is hereby ENJOINED from

displaying Monument 2 in front of the Stadium.

DATED: July 16, 2013

_______________________________

THE HON. STEPHEN V. WILSON

UNITED STATES DISTRICT COURT JUDGE


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AHA v. Lake Elsinore - Injunction Order

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