A lawyer for the organization that maintains the cross atop Mt. Soledad in La Jolla said he's "very encouraged" that the federal government has partially taken its side in a brief filed with the U.S. Supreme Court.
In the filing last week, the U.S. Solicitor General says the government agrees with the Mt. Soledad Memorial Association that the 9th Circuit Court of Appeals was wrong when it ruled in 2011 that the cross was unconstitutional.
However, the brief also said the appellate court should be given time to reconsider the decision.
Lawyer Jeff Mateer, general counsel of the Texas-based Liberty Institute, told City News Service that the case should go straight to the high court.
"Going to the 9th Circuit at this time would be futile," Mateer said.
However, the Solicitor General's filing said since a stay is in place for a ruling that would force the cross to be removed, no harm would be done by following standard procedure.
The constitutionality of the cross, which is on a 14-foot-tall pedestal for a total height of 43 feet, has been challenged in court since 1989. Opponents contend the cross is a government endorsement of a particular religion, while supporters say it is a war memorial first and foremost.
Mateer said thousands of war memorials around the country have religious imagery.
The 9th Circuit ruling was that the cross violates the establishment clause of the U.S. Constitution. The appellate justices ordered the case returned to the district court level for disposition.
Supporters of the cross unsuccessfully appealed to the Supreme Court the following year.
Then, in December, U.S. District Judge Larry Burns ordered the cross to be removed in 90 days. However, the judge -- who noted that he disagreed with the action -- issued a stay until appeals are exhausted.
Mateer said the Supreme Court justices didn't take the case the first time because they wanted a definitive ruling from the district court level -- which they now have.
The filing by the Solicitor General says the 9th Circuit ruling on the establishment clause goes against recent high court decisions. If the Supreme Court takes the case, the government "will urge the court to overturn the decisions," the document says.
The filing is in the case of the Mt. Soledad Memorial Association v. Steve Trunk, filed in 2006.