Cite as: 567 U. S. ____ (2012) 1 

Statement of ALITO, J. 

SUPREME COURT OF THE UNITED STATES 

MOUNT SOLEDAD MEMORIAL ASSOCIATION 

11–998 v. 

STEVE TRUNK ET AL. 

UNITED STATES ET AL. 

11–1115 v. 

STEVE TRUNK ET AL. 

ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED
 

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
 

Nos. 11–998 and 11–1115. Decided June 25, 2012
 

The petitions for writs of certiorari are denied.

 Statement of JUSTICE ALITO respecting the denial of the 

petitions for writs of certiorari. 

A large white cross has stood atop Mount Soledad in 

San Diego, California, since 1954 as a memorial to our 

Nation’s war veterans. The city of San Diego was previously enjoined under the California Constitution from

displaying the cross or transferring, for the purpose of

protecting the cross, the property on which the Mount 

Soledad Veterans Memorial stands. See Trunk v. San 

Diego, 629 F. 3d 1099, 11031104 (CA9 2011) (describing prior litigation); see also San Diegans for Mt. Soledad 

Nat. War Memorial v. Paulson, 548 U. S. 1301, 1302 (2006) 

(KENNEDY, J., in chambers) (same). In 2006, Congress

exercised its power of eminent domain and took title to the 

property in order to “preserve a historically significant 

war memorial.” Act of Aug. 14, §2(a), 120 Stat. 770. After 

the Federal Government took possession, the Ninth Circuit held in the decision below that “the Memorial, presently configured and as a whole, primarily conveys a 

message of government endorsement of religion that violates the Establishment Clause.” 629 F. 3d, at 1125. 
 

 

 

2 MOUNT SOLEDAD MEMORIAL ASSOCIATION v.

 TRUNK
 

Statement of ALITO, J. 

This Court’s Establishment Clause jurisprudence is undoubtedly in need of clarity, see Utah Highway Patrol 

Assn. v. American Atheists, Inc., 565 U. S. __, __ (2011) 

(THOMAS, J., dissenting from denial of certiorari) (slip op., 

at 17), and the constitutionality of the Mount Soledad

Veterans Memorial is a question of substantial importance. We considered a related question two Terms ago 

in Salazar v. Buono, 559 U. S. __ (2010), which concerned 

a large white cross that was originally erected on public 

land. Although “[t]he cross is of course the preeminent

symbol of Christianity,” id., at __ (ALITO, J., concurring in

part and concurring in judgment) (slip op., at 3), we noted 

that “[t]he goal of avoiding governmental endorsement

[of religion] does not require eradication of all religious

symbols in the public realm. . . . The Constitution does not 

oblige government to avoid any public acknowledgment of 

religion’s role in society,” id., at ____ (plurality opinion of 

KENNEDY, J., joined in full by ROBERTS, C. J., and in part 

by ALITO, J.) (slip op., at 1415). The demolition of the 

cross at issue in that case would have been “interpreted by

some as an arresting symbol of a Government that is not 

neutral but hostile on matters of religion and is bent on

eliminating from all public places and symbols any trace

of our country’s religious heritage.” Id., at __ (opinion of

ALITO, J.) (slip op., at 4).

In that case, we were not required to decide whether the

Establishment Clause would have required the demolition 

of the cross if the land on which it was built had remained 

in government hands. Instead, Congress was ultimately 

able to devise a solution that was “true to the spirit of 

practical accommodation that has made the United States

a Nation of unparalleled pluralism and religious tolerance.” Id., at __ (slip op., at 1).

The current petitions come to us in an interlocutory 

posture. The Court of Appeals remanded the case to the 

District Court to fashion an appropriate remedy, and, in 
Cite as: 567 U. S. ____ (2012) 3 

Statement of ALITO, J. 

doing so, the Court of Appeals emphasized that its decision “d[id] not mean that the Memorial could not be modified to pass constitutional muster [or] that no cross can be 

part of [the Memorial].” 629 F. 3d, at 1125. Because no 

final judgment has been rendered and it remains unclear

precisely what action the Federal Government will be

required to take, I agree with the Court’s decision to deny

the petitions for certiorari. See, e.g., Locomotive Firemen 

v. Bangor & Aroostook R. Co., 389 U. S. 327, 328 (1967) 

(per curiam) (denying petition for certiorari because “the 

Court of Appeals [had] remanded the case” and thus it was

“not yet ripe for review by this Court”); see also E. Gressman, K. Geller, S. Shapiro, T. Bishop, & E. Hartnett,

Supreme Court Practice 280 (9th ed. 2007) (hereinafter Stern & Gressman). Our denial, of course, does not 

amount to a ruling on the merits, and the Federal Government is free to raise the same issue in a later petition 

following entry of a final judgment. See, e.g., Hughes Tool 

Co. v. Trans World Airlines, Inc., 409 U. S. 363, 365366, 

n. 1 (1973); see also Stern & Gressman 283.