The full Ninth Circuit declined Oct. 14 to review or reverse the decision by a three-judge panel in January declaring the longstanding monument in San Diego unconstitutional. What is unusual, though, is that five of the judges dissented and sided with the cross.
"Removal of the Cross at this stage would pose a different Establishment Clause problem: hostility towards the role religion has played in our history, and in particular to the history of the Armed Forces," Judge Carlos T. Bea wrote in the dissenting opinion.
Bea added that San Diego is heavily influenced by and dependant on the Armed Forces and the Mt. Soledad cross is located between Camp Pendleton and Naval Base San Diego. The cross was dedicated in 1954 and initially honored Korean War veterans but now honors all vets.
The monument, Bea wrote, "is a memorial to the sacrifice made by many soldiers who have protected this country over the years, regardless of their religion. 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," Bea, who was nominated by President George W. Bush, wrote.
The cross stands 29 feet tall, 43 feet tall including its base.
Liberty Institute, representing the Mount Soledad Memorial Association which oversees the monument, filed the motion asking the full court to rehear the case following the January decision against the cross.
"Although we are disappointed that the Ninth Circuit denied requests to have the full court rehear the case, we are encouraged that five of the judges agree with us and believe the cross should stay," Liberty Institute said. "With this encouragement and the recent ruling in favor of the Mojave Veterans Memorial, we plan to appeal to the Supreme Court."
In an April 2010 decision in which the Supreme Court allowed a cross to remain in the Mojave Desert, Justice Anthony Kennedy, writing for a 5-4 majority, asserted that the "goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm."
"A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs," Kennedy wrote in the case, Salazar v. Buono. "The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society."
The American Center for Law and Justice filed an amicus brief in the Mt. Soledad case on behalf of 17 members of Congress in support of the memorial, asking the full Ninth Circuit to take the case.
"In our amicus brief, we contended that the federal government's acquisition and operation of the Mt. Soledad Veterans Memorial including its commemorative cross is consistent with the Establishment Clause and that the three-judge panel erred when it declared the memorial unconstitutional in January," Jay Sekulow, ACLJ's chief counsel, wrote Oct. 17.
The U.S. Department of Justice has until January to decide whether to ask the Supreme Court to hear the case.
"It is critical that this case go before the high court," Sekulow wrote. "The flawed lower court decision must not be permitted to stand. It's time for the DOJ to stand up for our nation's history and heritage and take this vital First Amendment case to the Supreme Court."
Charles LiMandri, a San Diego lawyer and longtime cross supporter, told the San Diego Union-Tribune that the latest Ninth Circuit decision and particularly the dissenting opinion set the stage for consideration by the Supreme Court. He also predicted at least five of the justices would support keeping the cross in place.
"We want to get this to the court before anybody retires," LiMandri said.
For two decades, the memorial has been at the center of a legal debate, with opponents saying the cross amounts to the government favoring the Christian religion, since the landmark is on public land and includes a cross. The ACLU is among the groups trying to have it removed.
In 1999, plaques with the names and photographs of veterans were installed around the cross. In 2008, a U.S. district judge in San Diego ruled that the cross is one element in a larger war memorial that honors the service of all veterans, but his decision was reversed by the Ninth Circuit.
In his dissenting opinion, Bea said history matters because "things change over time."
"The Spanish government of the day endorsed the Inquisition until the early years of the 19th Century. Would a reasonable observer therefore consider the edicts of King Ferdinand VII in determining whether today's Socialist government endorses the Inquisition? Of course not," Bea wrote.
"The panel concentrated its analysis on the history of the Cross as a religious symbol. Not on how this Cross at Mt. Soledad has been used by this government, but on the cross in general."
Erin Roach is an assistant editor of Baptist Press.
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