The Department of Justice filed a brief with the Supreme Court indicating that it would support advocates who are fighting to keep the Mount Soledad Cross on federal land outside of San Diego. But Justice stopped short of endorsing a ruling by SCOTUS at the present time. Instead, they urged the high court to send the case back to the 9th circuit for further review.
However, if the lower court rules against the cross and the case ends up in the Supreme Court, the administration indicated that it would side with cross advocates.
At issue is whether the cross violates the separation between church and state because it sits on federal land. That land, purchased by Congress when the cross first came under threat, was designated a war memorial and the administration argues that for that reason, it is not an unconstitutional promotion of religion.
The administration’s position, sent to the court this week, means the high court will likely have to decide the fate of the San Diego cross, but not this year.
The cross atop Mount Soledad was erected in 1954, but it has been under legal attack since 1989. A decade ago, Congress tried to resolve the matter by taking possession of the land and declaring it a national memorial to honor veterans.
But several vets, including the Jewish War Veterans of the United States, sued, contending the Christian cross was a religious symbol.
The 9th Circuit agreed, and last year U.S. District Judge Larry Burns ruled the cross must come down. But he also put his ruling on hold while the government appeals.
Recently, several groups urged the Supreme Court to allow them to skip the 9th Circuit appeal. The high court has rejected similar requests in the past to intervene in the matter.
U.S. Solicitor General Donald Verrilli Jr. advised against this procedural shortcut, noting there is no great urgency because the judge put his ruling on hold.
But he added the 9th Circuit’s earlier ruling was “wrong” and needs to be overturned, either by the appeals court or by the Supreme Court.
“The United States remains fully committed to preserving the Mount Soledad cross as an appropriate memorial to our nation’s veterans,” he said.
This is one of those happy circumstances where political calculation goes hand in hand with doing what’s right. It will please veterans groups as well as religious liberty advocates while putting some subtle pressure on the 9th circuit if SCOTUS, as expected, sends it back to the lower court.
The Supreme Court is expected to rule later this year.