The Mount Soledad Memorial Cross is unconstitutional because it conveys the message of “state-endorsed religion,” a federal appeals court ruled on Jan. 4.
The 29-foot cross, located in a San Diego public park near the suburb of La Jolla, was dedicated in 1954 to honor veterans of the Korean War.
A three-judge panel of the 9th U.S. Circuit Court of Appeals’ unanimous ruling said the decision was in no way “meant to undermine the importance of honoring our veterans.”
"Indeed, there are countless ways that we can and should honor them, but without the imprimatur of state-endorsed religion."
The court said modifications could be made to render the cross constitutional, but it did not specify those changes.
Joe Infranco, senior counsel of the Arizona-based Alliance Defense Fund, criticized the ruling.
“It's tragic that the court chose a twisted and tired interpretation of the First Amendment over the common sense idea that the families of fallen American troops should be allowed to honor these heroes as they choose,” he said.
The legal battle over the cross began in 1989 when Vietnam veteran Philip Paulson, an atheist, sued the city of San Diego. He argued that the cross excludes veterans who aren’t Christian. A Jewish veterans’ group has also been a plaintiff in the case, as has the American Civil Liberties Union.
Both state and federal courts have ordered the cross removed. In 2005, San Diego residents overwhelmingly approved a measure to preserve the cross by donating the land on which it sits to the federal government.
While the land transfer eventually took place, the courts have ruled that this did not protect the cross from the constitutional dispute.
David Blair-Loy of the ACLU in San Diego County defended the decision.
“We honor those who have served, but the Constitution does not allow the government to exclude non-Christians by endorsing a clearly religious symbol,” he said, according to the Associated Press.
Jimmie L. Foster, national commander of the American Legion, called on Attorney General Eric Holder to appeal the “regrettable decision” to the Supreme Court.
“The sanctity of this cross is about the right to honor our nation's veterans in a manner which the overwhelming majority supports,” he commented in a Jan. 5 statement. “The American Legion strongly believes the public has a right to protect its memorials.”
Rev. John Fredericksen, a 56-year-old Christian pastor from Orlando, Fla., was a Jan 3. visitor to the Mount Soledad cross who was critical of the court ruling.
“For those who are offended, they can move or look somewhere else,” he told the AP. “Christians are not asking every mosque or synagogue to be torn down. Why tear down a symbol of Christianity? Let them find or make their own memorial.”
The court ruling rejected the notion that the cross was intended solely as a war memorial. It said that for most of its history the cross served as a site for annual Easter services. A plaque designating it as a war memorial was not added until the legal controversy began in the late 1980s.
The cross was dedicated not only to fallen soldiers, but also to Jesus Christ with the hope that it would be “a symbol in this pleasant land of Thy great love and sacrifice for all mankind.” The ruling also described cross supporters’ “starkly religious message” and the religious characterizations of their campaign.
The court said that La Jolla has “a history of anti-Semitism that reinforces the Memorial’s sectarian effect.” It cited local housing discrimination against Jews until the late 1950s and testimony that local residents of the time believed without thinking that being religious meant being Christian.
Foster said the American Legion intends to file an amicus brief with the Supreme Court in support of an appeal.
“Frankly, after having read the decision, I would say that it will take either the wisdom of King Solomon or the Supreme Court to resolve the issue,” he said.