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 Mt. Soledad memorial cross |
The pathway to a Supreme Court argument has been cleared for the dispute over the Mount Soledad Veterans Memorial Cross in San Diego.
That happened when the 9th U.S. Circuit Court of Appeals refused to overturn a decision by a three-judge panel – or to rehear the arguments before a full panel – on the status of the memorial, which is dedicated to those who have fought and died for the United States.
It was in January WND reported that a three-judge panel ordered the cross to be removed, saying the monument was unconstitutional.
Lawyers for the Veterans Memorial then asked the full court to either review or reverse that decision – a request the court now has denied.
However, even the 9th Circuit panel seemed anything but in agreement, with five of the judges saying the cross should be kept where it is.
“Although we are disappointed that the Ninth Circuit denied requests to have the full court rehear this case, we are encouraged that five of the judges agree with us and believe the cross should stay,” said Kelly Shackelford, attorney for the memorial.
Shackelford was referring to the 23-page 9th Circuit denial released Friday, in which the conclusion says, “Mt. Soledad is a memorial to the sacrifice made by many soldiers who have protected this country over the years, regardless of their religion.”
It continues, “And it is a promise to those current soldiers, a promise that we appreciate the sacrifice they are willing to make for our freedom and that, if they pay the ultimate price, we will remember them.
“The cross has stood at the entrance to this memorial for almost 100 years. It has taken on the symbolism of marking the entrance to a war memorial.
“We should leave it be.”
Shackelford said that with “this encouragement and the recent ruling in favor of the Mojave Veterans Memorial, we plan to appeal to the Supreme Court.”
The Mt. Soledad Veterans Memorial consists of six concentric walls with plaques honoring more than 2,800 veterans, brick steps and a cross, which has been the target of litigation for the past 22 years because it sits upon government property.
The first memorial cross was erected at Mt. Soledad in 1913.
Joseph Infranco, senior counsel for the Alliance Defense Fund, also praised the 23-page dissent.
“The political agenda of secularist groups should not be allowed to uproot memorials that honor the sacrifices of America’s fallen heroes and their families,” he said.
“The strong dissent in the Mt. Soledad case filed Friday by five 9th Circuit judges made that completely clear.”
Infranco points to this quote from the dissenting judges:
The United States has a long tradition of memorializing members of the Armed Forces who die in battle with a cross or other religious emblem of their faith. … Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.
Infranco told WND, “The use of a cross in a military memorial does not in any way establish religion. The cross is there to honor fallen veterans.”
By refusing to review the case, the judges of the 9th Circuit have opened the door to the Supreme Court for the Soledad Memorial Cross.
Infranco told WND that the appeal request must be filed within 90 days.
The Supreme Court ruled just last year in Salazar v. Buono that another memorial cross standing in the Mojave Desert does not have to be removed, saying in its decision:
The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. … The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.
The 9th Circuit dissent took note of the recent Supreme Court decision as well:
If the Mojave Desert cross standing by itself, with only a single plaque, can be understood as a memorial to fallen soldiers, then surely the Mt. Soledad Cross, surrounded by more than 2,100 memorial plaques, bollards commemorating groups of veterans, and a gigantic American flag, can be viewed as a memorial as well.
According to the ACLU website, litigation over the Mt. Soledad Cross has been going on since a private individual sued the city of San Diego in federal court in 1989, saying that the presence of the cross violated the establishment clause of the U.S. Constitution.
Infranco told WND that there seems to be an agenda “to secularize our nation’s history and traditions, including the removal of crosses.”
Also, currently on review by the U.S. Supreme Court is a case between the American Atheists and the Utah Highway Patrol Association. As WND reported in April, the atheists want to tear down memorial crosses honoring fallen Utah state troopers.
WND also reported in July that American Atheists seek to tear down the World Trade Center cross.
Retired Col. Bruce S. Bailey, president of the Mt. Soledad Memorial Association, said, “The Mt. Soledad Memorial Association is committed to preserving this veterans memorial so that future generations will also know the cost of freedom.”
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