Over the past 25 years, the U.S. Supreme Court has twice previously declined to hear the Soledad cross case, sending it back to the Ninth Circuit Court of Appeals for resolution.
Cross opponents argue the landmark cross is a Christian symbol constituting an unconstitutional “establishment or endorsement of religion” on public land, and that it must be moved to private property.
Most recently, the Ninth Circuit didn’t order the cross to be dismantled, but instead offered the defendants an opportunity to alter the monument in some unspecified way so that it no longer violated the law. Litigants were unsuccessful in negotiating a settlement to do that.
“Due to the unique circumstances and the gravity of the Mt. Soledad Veterans Memorial case, we wanted to give the Supreme Court an opportunity to take the case now if they choose — since they will be deciding it eventually,” said Liberty Institute President and CEO Kelly Shackelford on behalf of MSMA. “We are hopeful that, once and for all, the Court will settle this question of the constitutionality of the Mt. Soledad Veterans Memorial, as the fate of hundreds of other similar veterans memorials hang in the balance.”
Bruce Bailey, MSMA President/CEO said, “The association is eager to have this case reviewed by the highest court in the land. We built this Korean War veterans memorial with support from The American Legion close to 60 years ago to honor the selfless sacrifice and service of the thousands of veterans who fought for the freedoms we enjoy today. The sacrifice of these great men and women must not be in vain. We will continue to depend on the steady hand of leadership of our attorneys and the court system, and I am confident we will ultimately prevail.”
Jim McElroy, attorney for the plaintiffs in the cross case, said this most recent petition to the U.S. Supreme Court is premature.
“They’re trying to leap frog the 9th Circuit Court, jump over one step that everybody goes through,” McElroy said adding, “It makes no sense. You need to go through the 9th Circuit first, before you can go to the Supreme Court.”
McElroy said what’s at issue now in the Cross case is “whether a court order to remove the cross within a 90-day period is valid.”
In May 2006, the courts ordered the city of San Diego to remove the cross from then city-owned property by Aug. 1 of that year or be fined $5,000 day. Two months later, U.S. Supreme Court Justice Anthony M. Kennedy temporarily blocked that order.
A month later, Justice Kennedy’s action was followed by President George W. Bush signing into law a bill transferring the cross to the U.S. Defense Department as a war memorial. That law was subsequently challenged in federal court by the American Civil Liberties Union (ACLU), Jewish War Veterans and others.
In 2008, Judge Larry A. Burns of the U.S. Southern District Court for the Southern District of California ruled that the cross could stay.
In 2011, however, the 9th U.S. Circuit Court of Appeals overturned Judge Burns’s ruling, finding that the cross, as currently presented and situated, violated the First Amendment.