(Photo: REUTERS/Mike Blake)
A 43-foot war memorial cross sitting atop a mountain in La Jolla, Calif., is an unconstitutional violation of the separation of church and state, a federal judge in San Diego ruled late Thursday. The judge's recent ruling is expected to be appealed and may head to the U.S. Supreme Court for final review.
U.S. District Judge Larry Burns ruled Thursday that the Mount Soledad Cross in Southern California must be taken down from its post on government property within 90 days, although he added that the ruling would be put on hold if it is appealed as expected.
In 2006, the American Civil Liberties Union filed a lawsuit on behalf of several Southern California residents and the Jewish War Veterans of the United States of America organization, arguing that the cross was a violation of the Establishment Clause because it only represented Christianity in memorializing U.S. war veterans. The cross was originally erected in 1954 to serve as a memorial to all war veterans, and later converted to serve as part of a newly erected Korean War memorial.
In his ruling, Judge Burns wrote that "it's time for finality" in the case, as the cross has been the subject of litigation for 23 years by multiple groups challenging its constitutionality. In 2005, the land the cross sits on was transferred from city ownership to federal ownership, and it was shortly after this ownership change that the ACLU filed a lawsuit objecting to the cross' presence on federal land.
In 2011, the 9th Circuit Court of Appeals ruled that the cross was unconstitutional, and after the U.S. Supreme Court refused to hear the case, it was passed back down to San Diego's federal court, where Judge Burns made his decision this week.
On Thursday, lawyers passed around several ideas for how to solve the legality of the cross, such as putting up a placard at its base clarifying that the government does not support any one religion. Ultimately, however, Burns ruled that the best way to end the debacle over the war memorial was to remove the cross entirely. "Deliberate language in the opinion makes it clear that removal of the large, historic cross is the only remedy that the Ninth Circuit conceives will cure the constitutional violation."
The ACLU said in a statement that although it supports the purpose behind war memorials, it believes ultimately the memorials should honor people of all religions, not just Christianity. "We support the government paying tribute to those who served bravely in our country's armed forces," said Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, according to local ABC 10 News. "But we should honor all of our heroes under one flag, not just one particular religious symbol."
The American Center for Law and Justice, which focuses on constitutional law, said in a statement on Friday that Burns' ruling was "deeply flawed," adding that the organization plans to file an amicus brief in the case's expected appeal.
"The federal court decision declaring the memorial unconstitutional and ordering its removal does not square with the facts," said Jay Sekulow, chief counsel of the ACLJ. "This memorial is part of the historic landscape of San Diego and is consistent with the Establishment Clause of the First Amendment."
Supporters of the cross have said that although this ruling appears to be a setback, it actually could prove positive as it gets the case a step closer to being reviewed by the U.S. Supreme Court. When the Supreme Court initially rejected reviewing the case last year, it said it would reconsider it once a lower court made a final decision on the matter.
"I'm somewhat upbeat about this. Believe me, we've had darker days," lawyer Charles LiMandri, president and chief counsel of Freedom of Conscience Defense Fund, told the San Diego Union-Tribune.
Proponents of the cross told ABC 10 News that they may again petition the Supreme Court to hear their case.