The American Center for Law and Justice (ACLJ) has filed an amicus brief on behalf of a group of Republican lawmakers, urging a federal district court in California to save the 29-foot cross at Mt. Soledad Veterans Memorial in San Diego.
"We have filed a critical amicus brief urging a federal district court in California on behalf of 18 members of Congress to permit a private group to obtain the Mt. Soledad Veterans Memorial in San Diego," ACLJ Chief Counsel Jay Sekulow said in a statement Thursday. "This proposed remedy is an alternative to the plaintiffs' request for a court order requiring that the memorial's commemorative cross be removed."
The cross was declared unconstitutional by the 9th U.S. Circuit Court of Appeals in 2011 on the grounds that the federal government was operating the memorial. And after the U.S. Supreme Court refused to take an appeal by the Liberty Institute in 2012, legal efforts have been focused on whether the cross must be removed.
Standing in La Jolla, Calif., the cross was originally dedicated as a Korean War Veterans Memorial in 1954 but now also honors U.S. veterans of World War I and World War II.
In the January 2011 ruling, Justice M. Margaret McKeown wrote, "By claiming to honor all service members with a symbol that is intrinsically connected to a particular religion, the government sends an implicit message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."
Sekulow said that although the appeals court's decision appears to be legally flawed, it is still possible to find a solution that would not require the commemorative cross to be removed. "We're urging the court to permit a private organization to obtain and operate the war memorial – a remedy that would remove any constitutional questions and protect this longstanding tribute to our men and women in uniform."
The lawmakers seeking to rescue the cross include Rep. Randy Forbes (R-Va.), head of the Congressional Prayer Caucus, and Rep. Duncan Hunter (R-Calif.), who represents the San Diego area where the memorial is located.
"Amici strongly disagree with the decision of the United States Court of Appeals for the Ninth Circuit holding that the federal government's operation of the Mount Soledad Veterans Memorial violates the Establishment Clause due to the presence of its commemorative cross," the brief says. "At this juncture, however, Amici believe that the best course of action, in keeping with the goal of maintaining the Memorial as a longstanding tribute to our men and women in uniform, is to allow a private organization to continue to maintain the property as a veterans' memorial, via a sale or land transfer."
The legal battle began when the ACLU sought to remove the cross in the late 1980s. The plaintiff, atheist war veteran Philip Paulson, argued that the cross was a religious symbol and that its display on public land was unconstitutional.
The memorial cross, erected by the Mount Soledad Memorial Association, is one of many veterans memorials across the country under attack by the American Civil Liberties Union, atheist groups and their supporters.