Originally published January 6, 2011 at 11:57 a.m., updated January 6, 2011 at 1:09 p.m.
Two San Diego congressmen are urging the government to defend the Mount Soledad memorial, including the 43-foot cross.
Letter From Congressmen Hunter and Bilbray
Reps. Brian Bilbray, R-Carlsbad, and Duncan D. Hunter, R-El Cajon, sent letters to the Departments of Justice and Defense in response to a recent ruling by the Ninth Circuit Court of Appeals that the cross is unconstitutional. The ruling stopped short of ordering the landmark to be taken down.
The cross, which was constructed on public land in 1952 as part of a war memorial, has been at the center of a 20 year legal battle over whether it is unconstitutional to display a cross on public or federal land. During that time state and federal courts have considered its fate.
In 1989, two Vietnam veterans sued the city of San Diego, seeking to enjoin it from allowing the cross to remain on city land.
Bilbray and Hunter wrote that the memorial was originally built to honor veterans of the Korean War.
"In reaching its decision, the ninth circuit panel overturned a previous ruling identifying the memorial as a secular symbol of military service and sacrifice," Bilbray and Hunter wrote. "In recognition of the long history of the Mount Soledad Veterans Memorial and its undeniable existence as a war memorial, it is imperative the departments of Justice and Defense take immediate action to protect this revered landmark."
The Defense Department owns the memorial and has a duty to protect it, while the Justice Department is supposed to defend the government's interests, the congressmen wrote.
A three-judge panel of the 9th Circuit Court of Appeals reversed the 2008 decision by U.S. District Judge Larry Burns, who ruled in a lawsuit brought by Jewish veterans that the cross is part of a larger war memorial honoring all veterans and serves as a secular symbol of service.
Justice M. Margaret McKeown, who penned the 50-page ruling, said the way the Mount Soledad Memorial is currently configured "primarily conveys a message of government endorsement of religion that violates the Establishment Clause. This result does not mean that the memorial could not be modified to pass constitutional muster, nor does it mean that no cross can be part of this veterans' memorial."
Charles Berwanger, general council for the Mount Soledad Association, which maintains the memorial, said this decision is not the end of the story. "There was an order by Justice Kennedy not too long ago which strongly suggests there is support on the U.S. Supreme Court for considering the future of the Mount Soledad Cross," he said.
The 43-foot cross is visible for miles and overlooks Interstate-5. It stood on city property for years, but in 2006 Congress designated the site a national veteran's memorial, and the land and cross were transferred to federal property.
City News Service contributed to the information in this report.