The battle to preserve the cross atop the Mt. Soledad War Memorial took another turn after a decision by the 9th Circuit Court of Appeals ruled that the cross, as is, is unconstitutional.
The 20-year legal fight over the cross on Mount Soledad took another turn Tuesday when a federal appeals court ruled the towering landmark on public land in La Jolla is an unconstitutional sign of government favoring religion.
The ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals was a blow to cross supporters, who have been battling efforts in state and federal courts to get the cross removed.
For now, opponents of the cross have prevailed. They have argued the Latin cross is an impermissible religious symbol on public land. Supporters have countered it is a secular landmark amid a larger memorial that honors military veterans and has no explicit religious meaning.
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.
Here is what we wrote regarding the subject cross some 2-1/2 years ago:
It was also at this time that the cross that sits atop the Mt. Soledad War Memorial was probably in its gravest danger of being removed. After 18 years of legal warfare, it appeared that a couple of whiny atheists with nothing better to do might prevail and have the cross removed. Between the flag wavers and the specter of seeing a San Diego landmark and memorial to this nation’s fallen destroyed, we were nearly shaking with rage for about 3 or 4 days.
The separation of church and state argument didn’t fly. The cross is also a cultural symbol as well as a religious one. Americans of every religious or non-religious stripe recognize the cross as a symbol of sacrifice as well as that of the Christian church. The men who are memorialized made that ultimate sacrifice for their country and for the man next to them. Setting a cross atop a hill does not make a religious statement… it does symbolize, though, that the ground beneath is sacred because of the self-less sacrifices that have been made. Removing the cross desecrates that ground… it devalues the price that was paid. Ironically, we imagine the very people (and there are very few of them) that wanted the cross removed, we're besides themselves when the Taliban destroyed those Buddhist monuments in Afghanistan.
Given the context of where the cross sets and its standing as a community and cultural landmark, what reasonable person would conclude that it represents an endorsement of religion by the state?
The 50-page ruling was written by Judge M. Margaret McKeown:
But she held open the chance that the cross could stay, writing: “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. We take no position on those issues.”
How does one go about "modifying" a cross so that it passes constitutional muster? Was there an amendment slipped into the constitution under cover of darkness on "non-endorsing cross construction"?
Obviously, stay tuned.
Exit question: Are we being somewhat hypocritical (as believers) in our general shoulder-shrugging attitude with respect to nativity scenes getting yanked from the City Hall front lawn as opposed to our indignation with respect to the Mt. Soledad War memorial cross?
P.S. The picture is of the annual Memorial Day ceremony held at Mt. Soledad and which we try to attend every year.