The typically liberal 9th Circuit in San Francisco says the war memorial cross at Mt. Soledad, San Diego is an endorsement of Christianity by government; the case is headed to an eventual conclusion at the Supreme Court.
UPDATE 6/25/12: Supreme Court declines involvement in case, for now -- maybe later.
UPDATE 3/15/12: Obama Justice Department files legal briefs asking the U.S. Supreme Court to overturn the Ninth Circuit Court of Appeals to allow the cross to stay
UPDATE 1/11/11: VFW sues Obama administration over Mojave cross land
-- From "Judges rule cross at Calif. park unconstitutional" by The Associated Press 1/4/11
A three-judge panel of the 9th U.S. Circuit Court of Appeals issued the unanimous decision in the dispute over the 29-foot cross, which was dedicated in 1954 in honor of Korean War veterans.
"In no way is this decision meant to undermine the importance of honoring our veterans," the three judges said in their ruling. "Indeed, there are countless ways that we can and should honor them, but without the imprimatur of state-endorsed religion."
Federal courts are reviewing several cases of crosses on public lands being challenged as unconstitutional, including a cross erected on a remote Mojave Desert outcropping to honor American war dead. Tuesday's ruling could influence future cases involving the separation of church and state.
U.S. Justice Department [of the Obama Administration] spokesman Wyn Hornbuckle said the federal government, which is defending the San Diego cross, is studying the ruling and had no comment.
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From "Appeals court rules Soledad cross unconstitutional" by Greg Moran, San Diego Union-Tribune 1/4/11
The battle is likely far from over. The appeals court did not order the 43-foot monument removed but returned the case to federal court in San Diego to determine if the cross will have to be moved or if there is a way that it can be modified to pass constitutional scrutiny as part of the war memorial.
Reaction to the ruling was swift and pointed. The American Civil Liberties Union of San Diego & Imperial Counties, which represented opponents seeking to get the cross moved, said the decision validated core legal ideas.
There are a couple of ways the case could move forward. The federal government, which now owns the land and was the defendant in the case, could ask a larger panel of the appeals court to review Tuesday’s decision. The larger panel could conclude the cross is OK where it is.
A second possibility, and one that people on both sides of the issue have long expected, would be for the case to end up before the U.S. Supreme Court, to determine once and for all the fate of the cross.
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From "Appeals court says Calif. cross on public land must go" by Robert Marus, Associated Baptist Press 1/5/11
“[C]onsidering the entire context of the memorial, the memorial today remains a predominantly religious symbol,” wrote Circuit Judge Margaret McKeown in the court’s opinion. “The history and absolute dominance of the cross are not mitigated by the belated efforts to add less significant secular elements to the memorial.”
“The fact that the memorial also commemorates the war dead and serves as a site for secular ceremonies honoring veterans cannot overcome the effect of its decades-long religious history....," McKeown wrote. "The memorial’s relatively short history of secular usage does not predominate over its religious functions so as to eliminate the message of endorsement that the cross conveys.”
The court also noted the La Jolla community’s history of anti-Semitism between the 1920s and 1970s.
“Overall, a reasonable observer viewing the memorial would be confronted with an initial dedication for religious purposes, its long history of religious use, widespread public recognition of the cross as a Christian symbol, and the history of religious discrimination in La Jolla,” McKeown wrote. “These factors cast a long shadow of sectarianism over the memorial that has not been overcome by the fact that it is also dedicated to fallen soldiers, or by its comparatively short history of secular events.... The use of such a distinctively Christian symbol to honor all veterans sends a strong message of endorsement and exclusion. It suggests that the government is so connected to a particular religion that it treats that religion’s symbolism as its own, as universal. To many non-Christian veterans, this claim of universality is alienating.”
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From "Calif. War Memorial Cross Unconstitutional, Court Rules" by Stephanie Samuel, Christian Post Reporter 1/5/11
Alliance Defense Fund Senior Counsel Joe Infranco labeled the ruling a tragedy.
“It’s tragic that the court chose a twisted and tired interpretation of the First Amendment over the common-sense idea that the families of fallen American troops should be allowed to honor these heroes as they choose,” he expressed in a statement following yesterday’s ruling.
Prior to this ruling, U.S. District Judge Larry Alan Burns ruled in 2008 that the cross does not violate the separation of Church and State.
"The court finds the memorial at Mt. Soledad, including its Latin cross, communicates the primarily non-religious messages of military service, death, and sacrifice," Burns wrote in his decision. "As such, despite its location on public land, the memorial is constitutional."
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Click headlines below to read previous articles:
Federal Judges Rule Crosses Unconstitutional
Obama's Supreme Court, re: Mojave Christian Cross
Atheists Fail to Stop Texas Cross Sculpture
Neighbor Disturbed by Cross on the Hill
