Federal Appeals Court Reviews Mt. Soledad Cross Case

December 17, 2009

The U.S. Court of Appeals for the Ninth Circuit held a 45-minute hearing last week in the Mount Soledad cross controversy.  Observers report that it was hard to determine how the court would ultimately decide.

The three-judge panel is reviewing a decision by U.S. District Court Judge Larry Burns, who ruled last year that the 29-foot-tall cross can remain on public land.  The Jewish War Veterans had sued to remove the cross, arguing that its presence on public land is an impermissible endorsement of religion by the state. The cross site is a federal war veterans memorial, seized from the city in 2006 by an act of Congress.  Judge Burns held that the cross is part of a larger war memorial that sends the message not of government endorsement of religion, but of honoring the service of all veterans, regardless of their faith.

The Jewish War Veterans' suit is the latest in a continuing courtroom battle that has spanned two decades and numerous courts, plaintiffs and defendants.  (The Center for Inquiry filed a brief with the Ninth Circuit back when the case was known as Paulson v. City of San Diego .)

During last week's hearing before the appellate court, Matthew Jones, the attorney for the plaintiffs, argued the cross is the pre-eminent symbol of Christianity, and that Congress violated the constitution by passing the 2006 act with the purpose of preserving that religious symbol.  Jones noted that although the cross site contains other, much smaller symbols, including plaques honoring war veterans, commemorative paving stones and the like, these were added only after litigation over the cross began twenty years ago.  The cross's defenders say that Congress was merely trying to preserve a historic monument -- which just happened to contain, as its most noticeable feature, a massive sectarian religious symbol.  They point to a "very clear statement" in the legislative history that Congress acted for secular, not religious purposes.

Courtroom observers from both sides of the religious-secular divide had difficulty discerning where the court would ultimately come down.  Once the Ninth Circuit decides the current case, an appeal to the U.S. Supreme Court is very likely.