It was the second time the highest court in the nation declined to hear the case, which Justice Samuel Alito said “must go through the Ninth Circuit Court of Appeals before the High Court can step in.”
In the most recent developments, U.S. District Judge Larry Burns in December 2013 ordered that the Soledad cross be removed within 90 days, but stayed the order pending a forthcoming appeal by the government.
On June 30, the Supreme Court denied hearing the case, with Alito saying it was not yet warranted because the appeal of Burns’ order has not yet been heard by the Court of Appeals.
The 43-foot-tall Mount Soledad Cross, erected on public land in San Diego in 1954 to honor Korean War veterans, has since become the centerpiece of an all-encompassing veterans memorial now owned by the federal government.
The legality of the Soledad cross has been in question since 1989, when U.S. Army Vietnam War combat veteran Philip Paulson, an atheist, became the lead plaintiff in a series of lawsuits seeking to remove the cross from the mountaintop, arguing its presence constitutes an illegal public endorsement of one religion over others.
Paulson died of cancer in 2006, but the legal battle he began 25 years ago continues to rage.
Reacting to the Supreme Court’s June 30 decision, the plaintiff’s attorney, James McElroy, hailed the decision as the right choice.
“The Mount Soledad Memorial Association (MSMA) had asked the Supreme Court to do something extraordinary, which was to take the case before the Ninth Circuit Court rendered its decision,” said McElroy.
“The judge had not ordered the cross removed immediately, but ordered a stay until the appeal was finished,” he continued. “There was no emergency. The cross wasn’t coming down at midnight.”
Charles Berwanger, an attorney for MSMA, said that while the cross issue is now back with the Ninth Circuit, that court “should not revisit the establishment clause,” which is one of several pronouncements in the First Amendment of the Constitution.
That clause states: “Congress shall make no law respecting an establishment of religion.”
But Berwanger said, “Attorneys could get creative trying to get around that rule.”
Berwanger added it’s possible that, once the Soledad case is finally settled by the Ninth Circuit, that proponents of the cross could petition the U.S. Supreme Court to hear the case yet again.
And, undoubtedly, this latest wrinkle in the Mount Soledad cross constitutionality case is going to take even more time, said Berwanger.
“I expect it could take a couple more years — at least — in the court system,” he said.
McElroy agreed the decision will not come overnight.
"It will take at least six months," he said.
McElroy said plaintiffs are adhering to their legal stance regarding the status of the Mt. Soledad cross.
“[The cross] is a 40-foot behemoth, not a small symbol or a regular part of a veterans memorial,” he said. “It’s the symbol that government has chosen that predominates over everything else.”