(Photo: REUTERS/Mike Blake)
The American Civil Liberties Union on Friday told a federal court that a veterans organization which erected the Mt. Soledad memorial cross in California should be removed from legal talks over how to modify the symbol paying homage to fallen soldiers so that it doesn't violate the Constitution.
Larry A. Burns, U.S. District Court Judge for the Southern District of California at San Diego, said at Friday's hearing that he was inclined to allow the Mount Soledad Memorial Association to continue to intervene as a party in the case, The Associated Press reported.
The judge added he will issue his ruling soon on the ACLU's request to remove the association from negotiations between the union and the Department of Justice over modifying the disputed cross built on a San Diego mountain top.
Early last year, the 9th Circuit Court of Appeals ruled that the cross is unconstitutional, but that it could be modified to pass constitutional muster.
David Loy of the ACLU in San Diego told the court on Friday that the veterans organization maintains the memorial but does not own it, and therefore it has no right to decide how the cross can be modified.
However, the association's lawyer, Jeff Mateer, argued that the veterans group erected the 29-foot cross in 1954 and has contractual rights to decide the future of the memorial.
The ACLU filed suit in 2006 on behalf of Jewish War Veterans of the USA and some residents of San Diego against the cross display. After the U.S. Court of Appeals' 2011 ruling that the cross was unconstitutional, Liberty Institute appealed in 2012 and the U.S. Solicitor General joined the appeal in defense of the cross.
The memorial includes a Latin cross and six concentric walls holding black granite plaques engraved with the names and photos of war veterans. Standing in La Jolla, Calif., it was originally dedicated as a Korean War Veterans Memorial 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."
McKeown added that this 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."
Alliance Defending Freedom Senior Counsel Joe Infranco called the ruling a tragedy. "It's tragic that the court chose a twisted and tired interpretation of the First Amendment over the common-sense idea that the families of fallen American troops should be allowed to honor these heroes as they choose," he said following the ruling.