Appeals Court: Mt. Soledad Cross Is Unconstitutional
Panel Of 9th Circuit Court Of Appeals Reverses 2008 Decision
Last Updated: 869 days ago
The 43-foot cross atop Mount Soledad is unconstitutional, but that doesn't mean it has to be taken down, according to a federal appeals court ruling handed down Tuesday.A three-judge panel of the 9th Circuit Court of Appeals reversed a 2008 decision by U.S. District Judge Larry Burns, who ruled in a lawsuit brought by Jewish veterans that the cross is part of a larger war memorial honoring all veterans and serves as a secular symbol of service."You know, I'm disappointed, but I'm not surprised," said attorney Charles Limandri, who represents a group of cross supporters called San Diegans for the Mt. Soledad National War Memorial.Attorney James McElroy, who has fought against the cross for 15 years, naturally had a different take."It's a great day for the Constitution," he said. "It's a great day for religious tolerance."Justice M. Margaret McKeown, who penned the 50-page ruling, said the way the Mount Soledad Memorial is currently configured "primarily conveys a message of government endorsement of religion that violates the Establishment Clause. This result does not mean that the memorial could not be modified to pass constitutional muster, nor does it mean that no cross can be part of this veterans' memorial.""The court was saying, it's not up to us at this point to say take down the cross," said McElroy.The Mount Soledad Memorial has been the subject of ongoing litigation for the last 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 the cross sits on 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."Well, that's a terrible shame," said Pacific Beach resident Dennis McCarthy said of Tuesday's ruling. "This is a great tribute to our veterans."San Diegan Annette Kunkel agreed with McCarth, and added, "It's been here for how many years, and it's part of the community. It should stay.""I read it as being very political and agenda-driven, as opposed to a real legal scholarly decision," Limandri said."I think that's a little demeaning to the court," countered McElroy. "Judges just try very hard to follow the Constitution."Both attorneys agree the decision will probably be appealed to the U. S. Supreme Court.