- The Washington Times - Wednesday, June 27, 2012

The Supreme Court declined this week to hear an appeal in the case of the Mount Soledad cross, but that doesn’t mean the iconic cross is coming down any time soon.

“It’s still standing here,” said Linda Martini, a volunteer at the Mount Soledad Veterans Memorial in San Diego, where the 43-foot white cross sits atop a dais. “It’s huge. You’d have to get a whole construction crew to take it down.”

Monday’s decision came as a setback for supporters of the 58-year-old cross, but they insist that is hardly the final word in a case that’s been shuffling through the legal system since 1989.

In turning down the appeal, Justice Samuel A. Alito Jr. offered words of hope to the monument’s defenders, saying that the request for review was premature.

Backers of the cross asked the Supreme Court to hear the case after the 9th U.S. Circuit Court of Appeals held in January 2011 that the federal government’s operation of the cross as a veterans’ memorial was unconstitutional.

Justice Alito noted that in its decision, the 9th Circuit sent the case back to the U.S. District Court to devise a solution. So far the District Court has not issued a final judgment.

“The Court of Appeals remanded the case to the District Court to fashion an appropriate remedy, and, in doing so, the Court of Appeals emphasized that its decision ‘did not mean that the Memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the Memorial],’ ” Justice Alito said.

He noted that the Supreme Court upheld the constitutionality of the Mojave Cross in 2010 after Congress transferred the acre of land surrounding the war memorial from the Mojave National Preserve in California to a private veterans’ organization.

“Our denial, of course, does not amount to a ruling on the merits, and the federal government is free to raise the same issue in a later petition following entry of a final judgment,” Justice Alito said.

Joe Infranco, senior attorney for the Alliance Defense Fund, which has defended the placement of the cross at the war memorial, said Justice Alito “almost issued us an invitation for the parties to come back after a final remedy has been fashioned.”

“He basically said it’s an important case, the issues are important,” Mr. Infranco said.

David Loy, legal director of the American Civil Liberties Union of San Diego and Imperial Counties, praised the high court’s decision to pass on the case.

“The government undoubtedly should honor the sacrifices of our veterans, but it must do so in a way that pays tribute to all our service members, not just those of a particular faith,” Mr. Loy said.

The ACLU represents a Jewish veterans group and several atheists who sued to have the cross removed in 1989, saying it violated the constitutional ban on an establishment of religion because it sat on San Diego city property.

Efforts by the city to sell the land to the Mount Soledad Memorial Association were blocked by judges, as was an attempt to donate the land to the Interior Department as a national veterans memorial.

In 2006, President George W. Bush signed a law transferring the cross and memorial to the Defense Department. A federal judge ruled the transfer constitutional, saying that the cross’s meaning as a war memorial outweighs its religious significance, but a three-judge panel of the 9th Circuit overturned the decision.

Allyson Ho, lead counsel for the Mount Soledad Memorial Association, said the organization would continue to seek a compromise that will let the cross stand at the memorial site in San Diego.

“While we are disappointed that the court did not accept this case for review at this time, we are hopeful we can find a solution that will allow this veterans’ memorial to remain where it has stood for over half a century,” Ms. Ho said.

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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