By Dave Schwab
Following the federal 9th Circuit Court of Appeals’ ruling that the Mount Soledad cross on federally owned property is unconstitutional, legal scholars think the issue ultimately could be headed to the U.S. Supreme Court.
But it’s even more likely that whether the cross as a Christian symbol constitutes an unconstitutional “government preference” for religion, will be tested one last time in the local court system before possibly moving to a larger stage.
“The only place for it to go higher than the Ninth Circuit is the U.S. Supreme Court,” said Glenn Smith, professor of constitutional law at California Western School of Law. “But the current (9th Circuit) summary judgment lets it go back down to the district court to let that court decide what should happen.”
Smith said the 9th Circuit’s recent decision turned on answering one legal question: What is the primary or predominant message sent to an average observer of a religious symbol on government property?
“The 9th Circuit said the cross is unconstitutional because a 43-foot cross dominates the whole landscape, and the message that’s created by the cross is that it supports the Christian religion,” he said.
“The 9th Circuit Court of Appeal could hear the case as an en banc panel of 13 or more judges,” noted Dave Steinberg, professor of law at Thomas Jefferson School of Law.
If the Soledad cross case should make it all the way to the U.S. Supreme Court, Steinberg said it’s difficult to assess whether the nation’s highest court would lean toward allowing the landmark symbol to stay, or order it to be removed.
“The Supreme Court has decided these religious symbol cases really on a case-by-case basis,” he said. “The historic pedigree of a religious symbol is important. Something that’s been around a long time is more likely to be upheld. That helps the cross. The fact that crosses have been used traditionally as grave markers in veterans’ cemeteries, that helps. What hurts is the courts have been most inclined to uphold religious symbols that are parts of larger monuments. The Soledad cross is distinguishable because it stands alone: That hurts.”
The Mount Soledad Memorial has been the subject of ongoing litigation since 1989 when Philip Paulson sued the city of San Diego seeking to prohibit it from allowing the cross to remain on city land.
Paulson has since died, but the case continues under the stewardship of his attorney, Jim McElroy, who, on behalf of Jewish war veterans, is contending the cross is primarily a religious display and not the centerpiece of a war memorial, as those seeking to keep it on the mountaintop maintain.
Charles Berwanger, attorney for the Mount Soledad Memorial Association, noted the 9th Circuit, which could review the Soledad cross case once again with an en banc panel of judges, has ruled on it three times previously. Another legal avenue to pursue, he said, would be to submit a writ of certiorari asking the U.S. Supreme Court to hear the case.
“The Supreme Court only hears 1 or 2 percent of the cases petitioned to it,” he said. “But this case has been around 22 years. It’s been to the 9th Circuit four times. It’s got a lot of pizzazz, a lot of curb appeal.”