The U.S. Supreme Court’s refusal Monday to review a lower court ruling that the cross atop Mount Soledad is unconstitutional means the structure will have to be changed significantly to avoid being taken down, according to a professor at the California Western School of Law.
The case will revert to local courts to create a remedy that satisfies last year’s opinion of the U.S. 9th Circuit Court of Appeals, said constitutional law professor Glenn Smith. Solutions could range from altering the memorial to going as far as taking the 43-foot-tall cross down, but the status quo will not do, he said.
“Whatever takes place would have to be an overall change so that an observer would not feel like the dominant figure is a Christian symbol,” Smith told City News Service.
The cross would have to be viewed as one of several elements of a memorial that honors veterans, he said.
The Mount Soledad Memorial has been the subject of ongoing litigation for the past two decades.
In 1989, two Vietnam veterans sued the city of San Diego, seeking to enjoin it from allowing the cross to remain on city land.
The land on which the cross sits has been under the control of the federal government since 2006, when Congress passed a law allowing seizure of the land for use as a war memorial.
“I was somewhat surprised they didn’t take the case,” Smith said. “It seemed like a perfect opportunity to resolve a long-running issue of legal doctrine.”
He said the nation’s highest court could decide to take the case later, once a ruling is made on remedies in lower courts.
David Blair-Loy, of the American Civil Liberties Union of San Diego and Imperial Counties, told 10News the high court justices made the right decision in refusing to hear the case.
“The 9th circuit decision was right on point on these facts and circumstances,” Blair-Loy said. “Clearly the government has no business playing favorites in religion.”
District 52 U.S. Congressman Duncan Hunter made the following statement after the Supreme Court decided not to consider the constitutionality of the memorial in San Diego:
“This ruling by the court is not a final judgment. The Mt. Soledad Veterans Memorial will return to the lower courts and, as Justice Alito said in his statement, ‘it remains unclear precisely what action the federal government will be required to take.’
“The Supreme Court passed on an immediate opportunity to settle this issue once and for all. But, in the process, the court continues to leave open the possibility that it will accept the case and make a constitutional determination in the future. That is good news overall.
“There are still issues that need to be settled, and this case will continue to be watched closely in the interest of preserving such a historic memorial that pays tribute to the service and sacrifice of America’s veterans.”
Rep. Brian Bilbray, R-Solana Beach, issued a statement condemning the legal opposition to the cross as an insult to veterans and their service.
“I intend to work with my colleagues to promote religious tolerance and find a way to defend this beloved memorial that has served as a symbol of sacrifice for San Diego’s veterans for nearly 100 years,” Bilbray said.