A federal appeals court ruled Tuesday the cross atop Mount Soledad is unconstitutional, but the ruling stopped short of ordering the landmark to be taken down.
A three-judge panel of the 9th Circuit Court of Appeals reversed a 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.''
The Mount Soledad cross has generated controversy for more than 20 years. 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.
The latest ruling is a setback for cross supporters.
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.
ACLU attorney David Blair-Loy said the ruling makes it clear the government has no business endorsing religious symbols. "For now what the court has said is that the constitution prohibits the federal government from endorsing one religion with the exclusion of others, and sending a message to non-Christians that they’re really not part of full members of society," he said. "And sending a message to non-Christian veterans that their service doesn’t count as much," he added.
The city of San Diego was dismissed from the lawsuit and not a party to the appeal because it successfully defended itself in the trial court, said city spokeswoman Gina Coburn in a written statement. "The Ninth Circuit decision does not change that result. Consequently, the City will not have to pay any costs as a result of today’s appellate decision, including attorneys’ fees to the Jewish War Veterans."
