SAN DIEGO — A San Diego federal judge made a reluctant ruling on Thursday that the cross atop Mount Soledad is unconstitutional, although the chances of the La Jolla monument coming down anytime soon are unlikely.
The latest ruling by U.S. District Judge Larry Burns will likely send the case back to the U.S. Supreme Court.
The high court declined to hear the case last year, but said it could reconsider once a lower court enters a final judgment.
Burns ordered the cross to be removed within 90 days, and then stayed that order until all appeals have been exhausted.
Both sides on Thursday called the latest ruling a victory, for different reasons.
“After 23 years, if you can’t come to a reasonable resolution, you’ve got a constitutional violation and you have to remedy it,” said attorney James McElroy, who has fought to remove the cross for several years.
On the other hand, cross supporters say this ruling moves them closer to getting the case reviewed once and for all by the Supreme Court.
“I’m somewhat upbeat about this. Believe me, we’ve had darker days,” said one of the opposing lawyers, Charles LiMandri, president and chief counsel of Freedom of Conscience Defense Fund.
The legal battle over the large cross, erected in 1954, has ping-ponged across numerous jurisdictions for years.
The land the cross sits on was transferred from city of San Diego ownership to the federal government in 2005 in response to the threat of it being taken down under a court order.
The monument, which includes 3,000 plaques honoring military veterans, is operated by the Mount Soledad Memorial Association.
In 2006, the Jewish War Veterans of the United States of America, as well as local residents, filed a lawsuit objecting to the display of the cross on federal property.
The American Civil Liberties Union is helping represent the organization.
“We support the government paying tribute to those who served bravely in our country’s armed forces,” Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, said in a statement. “But we should honor all of our heroes under one flag, not just one particular religious symbol.”
Burns ruled initially in 2008 that the cross could stay, but the 9th U.S.
Circuit Court of Appeals overturned the decision three years later, saying the cross sent a message that the government endorsed Christianity and therefore violated the establishment clause of the U.S. Constitution, which prohibits government endorsement of religion.
The court did leave open the possibility for other legal alternatives to keep the cross in place.
When cross supporters petitioned to have the case heard by the Supreme Court, the justices declined to take the case, returning it to the lower courts but adding that if the government was unhappy with the results they would consider taking another look at it.
Justice Samuel Alito did point out in his concurrence to the denial for review that the issue surrounding the cross is “a question of substantial importance.”
On Thursday, attorneys appeared before Burns to try to come to some kind of resolution.
Different ideas were tossed around, including posting signs around the 29-foot cross that sits atop a 14-foot base. The signs would have made it clear the cross is not an endorsement of religion
Other ideas included putting the land up for public auction or lowering the monument 10 to 15 feet so it’s not as visible from Interstate 5.
Physically altering the cross was found not to be viable.
In the end, Burns said he felt his hands were tied and there was little room to maneuver around the 9th Circuit’s ruling of unconstitutionality.
“Deliberate language in the opinion makes it clear that removal of the large, historic cross is the only remedy that the Ninth Circuit conceives will cure the constitutional violation,” Burns wrote in his ruling.
Hiram Sasser, director of Liberty Institute Litigation, which represents the memorial association, said: “We will continue to fight for this memorial and the selfless sacrifice and service of all the millions of veterans it represents; it is the least we can do for those who gave so much to us all.”
LiMandri said he is optimistic that the high court will take the case and rule in favor of keeping the cross, judging by the current makeup of the Supreme Court, as well as Alito’s comments and the record of how justices have ruled in similar religious symbol cases.
But McElroy called their chances a gamble, and said he hopes this ruling is the beginning of the end.
“I wish people would get a little more serious about how we can resolve this in a way that’s constitutional and a way that doesn’t show any disrespect for the cross,” McElroy said. “Absent that, we keep litigating. Sooner or later, the litigation is going to come to an end.”
A 2014 defense spending bill before Congress would have at one point provided rotection from legal challenges to religiously adorned war memorials on federal property such as the Soledad cross.
Rep. Duncan Hunter, R-Alpine, last spring placed the amendment in the National Defense Authorization Act, but it was dropped during negotiations leading up to the final version of the full measure scheduled for a vote this week, Hunter spokesman Joe Kapser said.
When he introduced the amendment in April, Hunter, a former Marine who served in Iraq and Afghanistan, suggested the courts were being used to suppress religious expression.
Other local congressmen expressed support for the cross Thursday.
“Our founding fathers did not seek to scrub all religious expression from public spaces, but rather sought to create a government and a society that respected the practice of all religions,” said Rep.
Darrell Issa, R-Vista; whose district includes Camp Pendleton. “The Mount Soledad War Memorial and the landmark cross honor the veterans in the same vein as crosses that mark the grave sites of soldiers entombed at Arlington National Cemetery and other U.S. veteran’s cemeteries worldwide.”
A spokeswoman for Democratic Rep. Scott Peters, whose district includes the cross, said he has always supported it as a war memorial.
“But we are a nation of law and he respects the court’s decision and thanks the Mount Soledad Association for all of its hard work,” spokeswoman MaryAnne Pintar said.