The U.S. Court of Appeals for the 9th Circuit heard the case on Dec. 9, but no decision is imminent since the three judges are waiting for the U.S. Supreme Court to hear the Mojave cross case “Salazar vs. Buno.”
The Supreme Court will hear the case sometime between now and June.
However, neither opponents nor supporters of the Mount Soledad Cross seem to think the Mojave case will influence the Mount Soledad case, saying the Mojave case will likely be decided on a technicality.
Both opponents and supporters of the cross believe the appellate court gave them a fair hearing on Dec. 9.
The American Civil Liberties Union (ACLU) brought the case before the U.S. Court of Appeals for the 9th Circuit in an appeal to a 2008 ruling by U.S. District Court Judge Larry Alan Burns that the cross is constitutional because it “communicates the primarily non-religious messages of military service, death and sacrifice.”
The ACLU represents the Jewish War Veterans, as well as plaintiffs and San Diegans Steve Trunk, Judith Copeland and La Jollans Richard A. Smith and Mina Sagheb.
The appellate court gave the ACLU a fair hearing, according to ACLU attorney Daniel Mach.
Defendants in the case include the U.S. Justice Department, City of San Diego and the Mount Soledad Memorial Association.
The Alliance Defense Fund, a coalition of Christian attorneys, submitted a friend-of-the-court brief in the hearing. Joe Infranco, a senior attorney with the Alliance Defense Fund, believes the outcome for the Mount Soledad Cross will be affected by the Supreme Court’s decision in 2005 to permit a statue of the Ten Commandments to remain on public property in Texas due to its historical significance.
“My impression is that the panel was attempting to reconcile its old views with the Supreme Court precedent, which is now very favorable to the cross,” Infranco said. “This is a panel that, based on its history, would not be friendly to our perspective. Any panel, regardless of each judge’s philosophy, is still bound by Supreme Court decisions.”
A brief history
A cross has stood on Mount Soledad since 1913. The first redwood cross was either stolen or destroyed, and the second one blew down in 1952. The Mount Soledad Memorial Association thus formed to erect the 29-foot cross (atop a 14-foot concrete base). During an Easter Sunday ceremony in 1954, the La Jolla Town Council dedicated the cross to veterans of World Wars I and II and the Korean War.
War veteran and atheist Philip Paulson first sued the city in 1989 over the constitutionality of the Mount Soledad Cross on city property. Ten years later, the Mount Soledad Memorial Association built a veterans memorial and has sold 2,600 granite plaques to the public to honor veterans.
Hear the arguments
To hear an audio recording of the hearing before the U.S. District Court of Appeals for the 9th Circuit visit www.ca9.uscourts.gov, click on “audio recording” and scroll through the cases to Dec. 9, and click on “Jewish War Veterans of the Uni vs. City of San Diego,” case no. 08-56415.