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.
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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 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 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.
Attorney Charles LiMandri, who has been fighting to keep the cross on Mount Soledad in La Jolla for nearly a decade, said statements made by the justices in their two-page brief encouraged him.
"It said it would show hostility to religion by removing a cross from a war memorial and that would be unconstitutional to show hostility towards a war memorial," said LiMandri.
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."
"The 9th Circuit did not say one way or another what the remedy should be. The 9th Circuit properly said that the remedy issue was premature because the district court had not addressed it in the first place," Blair-Loy added.
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.
LiMandri and other supporters plan to ask Congress to change ownership of the land.
"The remedy would be to transfer ownership to the Mount Soledad Memorial Association, which built the cross and has maintained the cross and done a great job doing it for some 60 years, so that's what we're going to try to do at this time," said LiMandri.
One law professor told 10News he believes that states, not the federal government should decide these issues.
"The problem is in this area of religious symbols," said legal expert David Steinberg. "The law is so incoherent that it's impossible to predict what is or is not constitutional."
It's unclear when the issue will head back to court.
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