The U.S. Supreme Court declined to review the Mt. Soledad Veterans Memorial Cross case Monday, paving the way for California's lower courts to make a decision before any other legal action is taken in the dispute over religious symbolism on government land in San Diego County.
"While we are disappointed the Court did not accept this case for review at this time, we are hopeful we can find a solution that will allow this veterans memorial to remain where it has stood for over half a century," said Allyson Ho, lead counsel for the co-defendant, the Mt. Soledad Memorial Association.
The memorial cross honoring the sacrifices and service of U.S. veterans has been on government property atop Mount Soledad near La Jolla, Calif., since 1954.
The land was owned by the City of San Diego until 2006. The property was then transferred to the federal government through an eminent domain action by Congress. It is surrounded by six concentric walls with the photos, names and diverse religious symbols. The 29-foot cross stands 43-feet high on a base.
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. The U.S. Court of Appeals for the Ninth Circuit ruled in 2011 that the cross was unconstitutional. Liberty Institute appealed in 2012 and the U.S. Solicitor General joined the appeal in defense of the memorial cross.
While the Supreme Court temporarily refused to review the case on Monday, lawyers defending the memorial cross are optimistic because Justice Samuel Alito issued a statement stating that an appeal may be premature. Also, that the court may reconsider this case after the district court issues a final order determining the fate of the memorial.
"We are hopeful in light of Justice Alito's statement and remain committed to defending this memorial through the many legal battles yet to come," said Kelly Shackelford, president and CEO of Liberty Institute and co-counsel for the Mt. Soledad Memorial Association.
Justice Alito wrote, "The court of appeals emphasized that its decision did not mean that the memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the memorial]."
"Because no final judgment has been rendered and it remains unclear precisely what action the federal government will be required to take," Alito said, "I agree with the [Supreme Court's] decision to deny the petitions [to hear the case]."
Lawyers for the Liberty Institute say that the Mt. Soledad Veterans Memorial Cross is just one of many veterans' memorials across the country under assault by the ACLU, atheist groups and their supporters.
In 2009, Liberty Institute successfully represented the Veterans of Foreign Wars (VFW) of the United States, The American Legion, the Military Order of the Purple Heart, VFW Department of California, American Ex-Prisoners of War, VFW Post 385, and retired Lt. Col. Allen R. Miliefsky, United States Air Force as amici at the Supreme Court to help save the Mojave Desert Veterans Memorial Cross, a World War I memorial in the Mojave National Preserve in California.