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Supreme Court of the United States ———— MOUNT SOLEDAD MEMORIAL ASSOCIATION, Petitioner, V

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Supreme Court of the United States ———— MOUNT SOLEDAD MEMORIAL ASSOCIATION, Petitioner, V No. 13-1061 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 AARON M. STREETT 75TH U.S. ATTORNEY GENERAL Counsel of Record 214 Massachusetts Ave., N.E. EDMUND G. LACOUR JR. Washington, D.C. 20002 BAKER BOTTS L.L.P. (202) 608-6180 910 Louisiana St. Houston, Texas 77002 PHILIP B. ONDERDONK (713) 229-1234 NATIONAL JUDGE ADVOCATE [email protected] THE AMERICAN LEGION 700 Pennsylvania St. RYAN L. BANGERT Indianapolis, Indiana 46204 BAKER BOTTS L.L.P. (317) 630-1200 2001 Ross Ave., Ste. 600 Dallas, Texas 75201 (214) 953-6500 Counsel for Amicus Curiae The American Legion Wilson-Epes Printing Co., Inc. – (202) 789-0096 – Washington, D.C. 20002 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. (i) 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 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 (iii) TABLE OF AUTHORITIES—Continued Page 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 (iv) TABLE OF AUTHORITIES—Continued Page 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/Monument Memorials/CanadianCross.aspx .............................. 9 Arlington National Cemetery, Canadian Cross of Sacrifice, http://www.arlingtoncemetery. net/canadian-cross.htm ............................................. 9 (v) TABLE OF AUTHORITIES—Continued Page Arlington National Cemetery, Tomb of the Unknown Soldier, http://www.arlington cemetery.mil/VisitorInformation/TombofUnk nowns.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/Defence For/Veterans/Medals/MilitaryCrossmc.htm ...... 17 Ministry of Defence, Victoria Cross, http://www.mod.uk/DefenceInternet/Defence For/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 (vi) TABLE OF AUTHORITIES—Continued Page 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=154 92&CategoryId=9399&grp=12&menu=Dec orations%20and%20Medals&ps=24&p=0 .......... 18 The Institute of Heraldry, Distinguished Flying Cross, http://www.tioh.hqda.pentagon. mil/Catalog/Heraldry.aspx?HeraldryId=152 49&CategoryId=3&grp=4&menu=Decorati ons%20and%20Medals&ps=24&p=0 .................. 17 The Institute of Heraldry, Distinguished Service Cross, http://www.tioh.hqda. pentagon.mil/Catalog/Heraldry.aspx?Herald ryId=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 ...............................................................
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