By Dave Schwab
The 43-foot cross atop Mount Soledad is unconstitutional, but that doesn’t mean it has to be taken down, according to a federal appeals court ruling handed down Tuesday.
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.”
Reacting to the court decision, attorney Jim McElroy representing Steven Trunk, who supplanted the late Philip Paulson who initially challenged the Soledad cross’s existence on public land 21 years ago, hailed Tuesday's decision as a “good day for the Constitution and a good day for religious tolerance.”
“It unequivocally states the cross on federal land is unconstitutional,” McElroy said adding what is especially significant about this ruling is that “there is no other case that involves a 40-foot-high, 20-ton cross that predominates something whose purpose is to be a veteran’s memorial that was once a stand-alone cross.
“This is a huge symbol that says we’re honoring Christian veterans, not non-Christian veterans.” McElroy said.
Bill Kellogg, chairman/CEO of the Mt. Soledad Memorial Association which built the cross in 1952 as a Korean War memorial, said the ruling is “really complicated and sort of throws everything on its ear.”
Kellogg said the Ninth Circuit’s decision tends to reverse the previous legal direction of the court, which was to allow the cross to stay. He said the court’s decision won’t change the association’s mission, or its holding of commemorative services for veterans on site.
“Since the cross site is now owned by the federal government, it’s a federal case and up to them to decide whether to appeal it to the U.S. Supreme Court,” Kellogg said.
Charles LiMandri, an attorney for the Thomas More Law Center, a not-for-profit public interest law firm defending the religious freedom of Christians, family values and the sanctity of human life, took issue with the court’s statement that the Soledad cross could remain if it were modified somehow to make it less religious.
“I think it would be offensive to people to modify it to make it something other than a cross,” LiMandri said. “You shouldn’t profane a symbol that has religious connotations to make it secular. That’s almost worse than removing it.”
LiMandri claims the Soledad cross is “a multifaceted, fully integrated, world-class war memorial with a symbol legitimately being used for a predominantly secular purpose.”
The Mount Soledad Memorial has been the subject of ongoing litigation for more than two decades.
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 land the cross sits on has been under the control of the federal government since 2006, when Congress passed a law allowing seizure of the land for use as a war memorial.