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The 20-year court battle over the constitutionality of the Mount Soledad Veterans Memorial continued Thursday as the Ninth Circuit Court of Appeals heard oral arguments.
It is not clear how or when the three-judge panel will rule.
"Tearing down this veterans’ memorial would be a disgrace," said Kelly Shackelford, chief counsel of Liberty Legal Institute and attorney for The American Legion. "It would not only dishonor those who have spilled their blood and given the ultimate sacrifice for their country, but it would open up veterans memorials nationwide to attack."
The panel on Thursday is reviewing a decision by U.S. District Judge Larry Alan Burns who last year ruled that the 29-foot cross in La Jolla, Calif., does not violate the separation of Church and State.
"The court finds the memorial at Mt. Soledad, including its Latin cross, communicates the primarily non-religious messages of military service, death, and sacrifice," Burns wrote in his decision. "As such, despite its location on public land, the memorial is constitutional."
Erected in 1954, the war memorial includes a Latin cross and six concentric walls holding black granite plaques engraved with the names and photos of war veterans. It was originally dedicated as Korean War Veterans Memorial but honors U.S. veterans of also World War I and World War II.
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A lawsuit filed by the American Civil Liberties Union in 1989 sought to remove the cross. The plaintiff was atheist war veteran Philip Paulson, who argued that the cross was a religious symbol and that its display on public land was unconstitutional. The Jewish War Veterans is also suing for the removal of the memorial.
Liberty Legal Institute argues that "there is no Establishment Clause violation here."
"Military culture is replete with such imagery and symbols with religious origins that have taken on widely accepted meanings independent of any religious connotation," the legal group contends in its amicus brief, filed on behalf of millions of veterans through The American Legion.
Craig Roberts, media relations manager of The American Legion, commented, "It is ironic that the ACLU, an organization founded with the very best of intentions to obtain and maintain liberties for our citizens, should seek to suppress the freedom to express heartfelt respect and honor to those who have fought for those liberties. The ACLU's position may not be malicious in any way, but is wholly misguided."
Attorney James McElroy, who is representing Jewish War Veterans, told La Jolla Light that the case comes down to whether the cross is primarily a religious symbol or a veterans memorial.
"Obviously, it's primarily a Christian symbol," he told the local newspaper. "If it's a Christian symbol, it's unconstitutional for it to be on government property."
The Mt. Soledad Veterans Memorial website describes the mission of the memorial as "honoring veterans who have served our country and to educate the general public about service to our country and the sacrifices that veterans make to preserve the freedoms we enjoy as Americans" and makes no mention of religion.
A legal battle is also being waged over the constitutionality of the Mojave Desert memorial – a seven-foot cross – originally built 75 years ago by World War I veterans. The Supreme Court heard arguments in October.
