California memorial cross found unconstitutional
By Steve Gorman Steve Gorman – Tue Jan 4, 10:11 pm ET
LOS ANGELES (Reuters) – A federal appeals court ruled on Tuesday that a San Diego war memorial marked by a four-story-tall Christian cross on public land violates the U.S. constitutional ban on government endorsement of religion.
Capping a legal dispute brewing since the late 1980s, the 9th U.S. Circuit Court of Appeals reversed a lower-court decision that threw out a legal challenge to the hilltop cross brought on behalf of Jewish war veterans.
The three-judge panel concluded in its 47-page opinion that the U.S. "district court erred in declaring the memorial to be primarily nonsectarian and granting summary judgment in favor of the government and the memorial's supporters."
A group that filed a brief on behalf of 25 members of Congress supporting the Mount Soledad Veterans Memorial, the American Center for Law and Justice, condemned the appeals court ruling as "a judicial slap in the face to our military veterans."
The appeals court, recognizing volatile feelings generated on both sides by the case, wrote that America's war veterans can and should be honored, "but without the imprimatur of state-endorsed religion."
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In its 3-0 decision, the court stopped short of ordering removal of the cross and left open the possibility that the memorial could be redesigned to incorporate a cross in a way that would "pass constitutional muster."
But the appellate panel took no position on a remedy, leaving the question of how the memorial might be reconfigured to be decided by the lower-court judge.
David Blair-Loy, legal director of the American Civil Liberties Union of San Diego, said U.S. District Judge Larry Burns might order the parties to confer or engage in mediation to reach a final resolution to the case.
There was no immediate word on whether the Obama administration would petition the U.S. Supreme Court to review the appeals court ruling.
The site of the 43-foot-tall cross overlooking the Pacific was acquired from the city of San Diego by the federal government through eminent domain in 2006.
The transfer was authorized in legislation passed by Congress and signed into law by then-President George W. Bush after the city was ordered to remove the cross under a previous court challenge.
The first cross on Mount Soledad was erected in 1913 but was replaced in the 1920s with another one that blew down in 1952. In 1954, a third, larger cross was installed.
The site served as a gathering place for annual Easter services and was designated as a war memorial in the late 1980s only after the legal dispute was initiated.
Last year, the U.S. Supreme Court overruled another federal judge who had ordered the removal of a large cross intended to serve as a desert war memorial in the middle of the U.S.-owned Mojave National Preserve.
But Blair-Loy said that case differed from the Mount Soledad dispute because the site of the desert cross was on private property surrounded by public land.
(Editing by Greg McCune and Peter Bohan)