Judge orders Mt. Soledad cross removed, but saga probably isn't over
A US judge on Thursday ordered that the landmark Mt. Soledad cross, part of a federal war memorial, be dismantled in 90 days 鈥� unless there is an appeal. His apparent aim is to pave the way for the US Supreme Court to consider the case.
People gather in the late evening sun around the massive cross sitting atop the Mt. Soledad War Memorial in La Jolla, Calif., Dec. 12, 2013.
Sandy Huffaker/Reuters
A federal judge鈥檚 order to remove the massive cross atop San Diego鈥檚 Mount Soledad may not be the final word on the long-running controversy over display of a religious symbol on public land.
US District Judge Larry Burns gave the city, the federal government, and the association that runs the memorial 90 days to dismantle the southern California landmark.聽But he also stayed that action pending the resolution of any appeal.
The five-page order, issued Thursday, makes clear that Judge Burns does not believe the Mount Soledad cross violates the First Amendment鈥檚 Establishment Clause.聽鈥淭his court previously held (and continues to believe) that permitting a historic, now 59-year-old cross to remain as part of a federal war memorial atop Mount Soledad cannot be reasonably viewed as our government鈥檚 attempt to establish or to promote religion,鈥� he wrote.
Nonetheless, the judge鈥檚 earlier decision permitting the cross to remain as part of a war memorial was overturned by a panel of the Ninth US Circuit Court of Appeals.聽The appeals court found that display of a cross on government land sends a 鈥渕essage of endorsement and exclusion鈥� by the government.
Judge Burns noted that some members of Congress supported a bill to transfer the memorial site to a private entity, but that effort has bogged down.
鈥淭he mere possibility that Congress will act to transfer the Mount Soledad Memorial to private interests is not a reason to delay this case further,鈥� the judge wrote. 鈥淎s the Ninth Circuit noted in its opinion, the presence of this cross on public property has generated controversy for more than twenty years.鈥�
Last year, the case made it to the US Supreme Court, but the justices declined to take up the issue, noting that a final decision had not yet been rendered in the cross case.
In a concurrence to that action, Justice Samuel Alito noted that the underlying issue in the Mount Soledad cross case is 鈥渁 question of substantial importance.鈥�
It is this comment that appears to have prompted Burns to issue a final ruling as a means to clear the way for the case to return to the high court for an examination of the Ninth Circuit decision.
鈥淚t is particularly appropriate for the court to issue a decision that advances this case to finality so that this question of 鈥榮ubstantial importance鈥� can be clarified, perhaps by the US Supreme Court,鈥� the judge wrote.
The case is Steve Trunk v. City of San Diego (06cv1597), consolidated with Jewish War Veterans v. Charles Hagel, Secretary of Defense (06cv1728).