Monday, December 16, 2013
Dan Eaton, SD attorney with Seltzer Caplan McMahon Vitek
Bruce Bailey, president of the Mt. Soledad Memorial Association
The long dispute over a cross on top of Mount Soledad in La Jolla could be entering its final phase.
A federal judge ruled last Thursday that the cross is unconstitutional and should be removed.
San Diego District Court Judge Larry Burns ruled to uphold a 2011 ruling by the 9th Circuit Court of Appeals that found that the memorial site violated the First Amendment of the Constitution.
The 2011 ruling by the 9th Circuit Court overturned a 2008 decision by Judge Burns.
Legal analyst Dan Eaton said "in reversing Judge Burns’s earlier order and returning the case to him, the 9th Circuit did not say specifically what had to happen next, such as whether the cross had to come down."
"The 9th Circuit asked Judge Burns to consider whether the site could be modified to pass constitutional muster. That’s what he did in ordering last week that the cross must come down within 90 days of his order."
The Mount Soledad Memorial Association will appeal the ruling.
In a statement released Friday, Memorial Association President Bruce Bailey said “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.
“However, we are grateful for the judge’s stay that gives us an opportunity to fight this all the way to Supreme Court."
Jeff Wergeles, deputy director of the ACLU of San Diego and Imperial counties, said the site’s distinction as a memorial means it should be free of religious icons.
“On church property or someone’s backyard, that’s perfectly wonderful. But if we’re celebrating all service people who have fought under our flag, we should have something nonsecular,” Wergeles said.
Wergeles said the legal battle over the cross could go on for up to three years. The cross will stay on Mount Soledad until the fight is settled.