It was the second time the landmark cross, which opponents argue is a Christian symbol constituting an unconstitutional “establishment or endorsement of religion,” has been ordered to come down.
In May 2006, U.S. District Judge Gordon Thompson ordered the city to remove the cross from then city-owned property by Aug. 1 of that year or be fined $5,000 a day. Two months later, U.S. Supreme Court Justice Anthony Kennedy temporarily blocked Thompson’s order. A month later, President George W. Bush signed into law a bill transferring the cross to the Defense Department as a war memorial. That law was subsequently challenged in federal court by the American Civil Liberties Union (ACLU), Jewish War Veterans and others.
In 2008, U.S. District Judge Larry A. Burns ruled the cross could stay. In 2011, however, the 9th U.S. Circuit Court of Appeals overturned Burns’ ruling, finding that the cross, as currently presented and situated, violated the First Amendment.
The 9th Circuit didn’t, however, order the cross to be dismantled. Instead, it offered the defendants an opportunity to alter the monument in some unspecified way so that it no longer violated the law. Litigants have attempted, unsuccessfully, to do just that.
Over the years, the U.S. Supreme Court has twice declined to hear the Soledad cross case. But the highest court in the land has hinted that it remained open to hearing the case after the trial court had taken up the 9th Circuit Court’s suggestion to look for alternatives.
Proponents of keeping the cross “where it is, as it is,” said they’ll challenge this latest legal attempt to move the Soledad cross.
“It’s unfortunate that the 9th Circuit left the judge no choice but to order the tearing down of the Mount Soledad Veterans Memorial Cross,” said Bruce Bailey, president of the Mount Soledad Memorial Association (MSMA). “However, we are grateful for the judge’s stay that gives us an opportunity to fight this all the way to Supreme Court.”
The U.S. Supreme Court is exactly where the Soledad cross case could — and likely will — end up, said Glenn Smith, professor of Constitutional Law at California Western School of Law in San Diego.
“The cross is one of those things that has taken on a symbolic significance that far exceeds this particular set of facts, that’s why the issue has taken on such life,” Smith said.
The legal battle over the landmark cross is far from over, Smith said.
“I fully expect that Judge Burns’ decision will be appealed to the 9th Circuit, and I would expect the 9th Circuit to affirm Judge Burns’ decision, and that it will again be appealed to the U.S. Supreme Court,” he said. “This is likely to be the last round. Then, in two or three years, we’ll definitely have a resolution.”
Mount Soledad veterans have secured the support of the Liberty Institute, a nonprofit legal group dedicated to defending and restoring religious liberty, in its continuing fight to keep the cross on its La Jolla mountaintop site.
“We will continue to fight for this memorial and the selfless sacrifice and service of all the millions of veterans it represents,” said Hiram Sasser, Liberty Institute litigation director. “It is the least we can do for those who gave so much to us all.”