The Liberty Institute, a nonprofit organization dedicated to limiting government and promoting Judeo-Christian values, filed a writ of certiorari on Feb. 9 asking the U.S. Supreme Court to take up the long-standing case.
The Texas-based nonprofit filed the petition on behalf of the Mt. Soledad Memorial Association, which maintains the memorial, in the hopes of overturning the 9th U.S. Circuit Court of Appeals’ decision last year that ruled the cross unconstitutional.
“We conclude that the memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause,” wrote Judge Margaret McKeown in the court’s published opinion. “The result does not mean that the memorial could not be modified to pass constitutional muster nor does it mean that no cross can be part of this veterans memorial. We take no position on those issues.”
She further indicated in the opinion that simply because there is a religious symbol on public land does not mean there is a constitutional violation; however, the cross — at 29 feet tall, 12 feet wide and perched atop a 14-foot base — was deemed as the “defining feature” on the war memorial and violates the First Amendment to the Constitution, establishing freedom of religion.
“[T]his war memorial — with its imposing cross — stands as an outlier among war memorials, even those incorporating crosses. Contrary to any popular notion, war memorials in the United States have not traditionally included nor centered on the cross, and, according to the parties’ evidence, there is no comparable memorial on public land in which the cross holds such a pivotal and imposing stature, dwarfing by every measure the secular plaques and other symbols commemorating veterans,” she said. “The use of such a distinctively Christian symbol to honor all veterans sends a strong message of endorsement and exclusion. It suggests that the government is so connected to a particular religion that it treats that religion’s symbolism as its own, as universal.”
Representatives from the Mt. Soledad Memorial Association and Liberty Institute maintain the judges erred in their decision ruling the cross unconstitutional.
The Liberty Institute held a rally at the memorial site on Feb. 9, re-launching its “Don’t Tear Me Down” campaign, an effort to spread public awareness and galvanize support for the 58-year-old San Diego landmark and other memorials that bear religious imagery.
“Let’s put an end to these attacks on memorials that bring pain to veterans, and go back to celebrating and respecting what these soldiers have done for our country,” said Kelly Shackelford, president and CEO of Liberty Institute, calling the removal of the cross a “move that would anger many military veterans.”
Shackelford said removing the cross on Mt. Soledad would set precedent for other “battlefields” where religious symbols on veterans’ memorials are at stake.
“This isn’t the only attack like this going on right now,” he said. “If this cross comes down — this is a 29-foot cross — what do you do with the 24-foot cross in Arlington Memorial Cemetery, the Cross of Sacrifice? What do you do with the 10-foot cross there, the Argonne Cross? What do you do to the Tomb of the Unknown Soldier that says ‘known but to God?’ What do you do to literally every community of every state of this country that has crosses and Stars of David throughout?”
Shackelford said the removal of the cross would be a disservice to war veterans who are honored there.
“The purpose for these memorials is to remember, to honor. Right now, unfortunately, with these attacks, it’s something that brings disrespect and dishonor. It brings pain to veterans to have to think about tearing something down, pulling things off,” he said. “Our veterans deserve more than that. Our country deserves more than that, and I think it’s time to put an end to these attacks.”
William Kellogg, chairman and CEO of the Mt. Soledad Memorial Association, said the memorial site in its entirety must remain to honor veterans and share their stories.
“This veterans memorial is unique. It is a significant destination for local residents as well as visitors from around the world. Thousands visit the memorial every month and they walk the walls, so to speak, to read the stories of honored veterans,” he said. “The original cross, together with the walls, the flagpole and the walkway, form an integrated monument that means everything to so many families. It must remain as it is and where it is. To do otherwise would be an unforgivable insult to those who sacrificed everything to protect our way of life.”
There were also a handful of guests at the rally who wanted the Court of Appeals’ decision to be upheld, calling for the removal of the religious symbol.
“We want to protect the religious liberty of all Americans,” said Debbie Allen, president of the San Diego chapter of Americans United for Separation of Church and State, an interfaith organization dedicated to preserving religious freedom for all. “A cross conveys a sectarian message that does not represent all deceased veterans.”
Allen said the right to religious liberty is not secure if the government presumes to promote religion over non-religion or favors one faith over another.
“AU believes that our rights are not secure when the state taxes you to pay for someone else’s religion or when the government appropriates and displays the symbols of a faith that you may not share,” she said. “We are not saying anything against memorializing the service of our veterans. We think that memorializing service and sacrifice is important and should continue. Americans United would favor a symbol that did not further divide our citizens, but rather unite as many as possible.”
The Supreme Court is expected to decide whether or not to take the case by June. If the request is accepted, the battle of the cross’s presence will continue at the highest U.S. court. If the request is denied, “That’s it,” said Shackelford. “The case is over, and the cross would come down.”