A flashpoint for "church-state" debate since 1989, the Mount Soledad Memorial cross near San Diego has been ordered to be left alone and then to be torn down. It's been ruled constitutional and unconstitutional.
But it's still there, and a new brief submitted to the 9th U.S. Circuit Court of Appeals argues it should remain untouched, based on a new U.S. Supreme Court precedent.
The case originated because someone was "offended" by the Christian symbol at the veterans memorial. It's the third cross at the site since the first was erected in 1913.
The case has been up and down the court ladder, including to the U.S. Supreme Court. In the latest ruling, a district judge determined the cross must be removed. But he stayed his decision while other courts weigh in.
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The brief filed with the 9th Circuit on behalf of a long list of organizations contends the "historical practice of memorializing fallen members of the armed services with a cross" has been well documented.
The memorial, the brief further argues, is constitutional because it has no other purpose than to memorialize veterans.
The brief was filed by the United States Justice Foundation and William J. Olson P.C.
They are representing the Public Advocate of the United States, the Lincoln Institute for Research and Education, the Abraham Lincoln Foundation for Public Policy Research, Institute on the Constitution and the Conservative Legal Defense and Education Fund.
The cross should stay, the groups say, because of a new standard for such decisions established this year by the Supreme Court.
The brief explains that the USJF had been involved in the case since 1996, filing multiple briefs on the issue over the years.
For decades, courts have been aimless in their decisions on such disputes, but that came to an end with the Supreme Court's decision in Town of Greece v. Galloway, the brief asserts.
The decision revived the ruling in Marsh v. Chambers from four decades ago, which drew a line between matters belonging to the state and matters belonging to the church. It ruled "that so long as prayer addresses the corporate duties and needs of civil government, not the personal duties and needs of individuals, then prayer – even sectarian prayer – is constitutionally permissible."
The decision also recognized that government cannot coerce people into religion, but the law does not ban "merely offending some individuals."
Previous rulings from the 9th Circuit, which has seen the case before, fell under the now-discontinued standard, the brief explains.
But there now would be no violation under the Supreme Court's guidance, the brief argues.
"And there is no need for a remand to augment the record below developed over decades of litigation. The Mt. Soledad Memorial Cross stands, both historically and contemporaneously, as a war memorial celebrating and commending those Americans who have given their lives in service to the nation, a function well within the jurisdiction of the civil government and, therefore, consistent with the Establishment Clause," the brief says.
Last December, U.S. District Judge Larry Burns ruled the monument had to be destroyed, setting up another path for the case to the 9th Circuit and probably the U.S. Supreme Court.
In June, however, defenders of the cross were pressing the Supreme Court to step in and rule on the long-running case.
The arguments for the cross's removal have been based on somebody's hurt "feelings," according to attorneys with the Alliance Defending Freedom, which previously filed a brief in 2012 on behalf of thousands of members of the United Retired Firefighters Association and the American Legion.
The case was brought in 1989 by an atheist who claimed the existence of the cross made him uncomfortable.
But the 2012 ADF brief said those who claim to be offended are suffering no injury.
"Instead, their standing rests on subjective feelings of offense. In this case, the allegations of lead plaintiff, Mr. Steve Trunk, typify those of offended observers nationwide who recoil at any employment of religious symbolism by the state. Mr. Trunk's declaration states, for example, that the cross located at the Mt. Soledad National Veterans Memorial causes him to subjectively 'feel uncomfortable, offended, disrespected and like a second class citizen,'" the brief said.
"Offended observers have no such direct stake and the psychological harm to which they lay claim pales in comparison to that caused by the demolition of public memorials dedicated to those who gave their last full measure of devotion to our nation."
Previously, courts had claimed a public display was unconstitutional if it was government sponsored and sent a message "to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members."
The high court's new standard, however, states "offense" does not equal "unconstitutional."
"In their declarations in the trial court, respondents stated that the prayers gave them offense and made them feel excluded and disrespected," the high court said in its Greece ruling. "Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions."
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