The Mount Soledad cross. People have been fighting over the cross's presence, as part of a war memorial, for more than twenty years. Two years ago, the Ninth Circuit held that the cross was a violation of the Establishment Clause, as it sent a message of government endorsement of a particular religion.
And yet, it remains standing. And despite yesterday's order by U.S. District Court Judge Larry Burns, giving the city, federal government, and the association running the memorial 90 days to dismantle the landmark, it's almost certain that the cross isn't coming down soon, as the order was stayed pending any further appeals.
Judge Burns: Not an Establishment Clause Violation
In the order, Judge Burns noted that, "This court previously held (and continues to believe) that permitting a historic, now 59-year-old cross to remain as part of a federal war memorial atop Mount Soledad cannot be reasonably viewed as our government's attempt to establish or to promote religion."
The Ninth Circuit Court of Appeals panel disagreed when it ruled that Mount Soledad Memorial, "presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause." The Ninth Circuit denied en banc rehearing in October 2011 by a 6-5 vote.
And as we previously mentioned, the Supreme Court declined to intervene at that time. Instead, the court held off to allow the lower courts to decide whether removal or modification of the monument was warranted. At the time, Justice Alito noted, "This Court's Establishment Clause jurisprudence is undoubtedly in need of clarity ... and the constitutionality of the Mount Soledad Veterans Memorial is a question of substantial importance."
Divine Supreme Court Intervention?
In yesterday's order, Judge Burns noted that the Ninth Circuit panel's "indirectly worded" opinion, mandated removal of the cross. Despite language leaving room for modification of the monument, the opinion's citation of other cases, which explain clearly that a cross, even designated as a war memorial, can't comply with the Establishment Clause, made it clear that removal was the likely outcome, and no party had offered a plausible alternative.
The order also denied a stay pending federal legislative intervention. A bill sitting in Congress would transfer the memorial to a private entity, curing the violation, but at the time of argument, the transfer provision had been deleted from the bill and, "the mere possibility that Congress will act to transfer the Mount Soledad Memorial to private interests is not a reason to delay this case further."
However, the order did imply that Judge Burns is hoping for a bit of SCOTUS salvation. Judge Burns noted that Justice Alito specifically cited the lack of a final order as the impediment to a certiorari grant. In order to make such a grant possible, Judge Burns issued a "final" order, permanently enjoining the defendants from displaying the cross and ordering its removal within 90 days, but staying the order pending any further appeals.
Your move, SCOTUS.
- Trunk v. San Diego (FindLaw's CaseLaw)
- Judges Orders Removal of Cross on Federal Land (Courthouse News Service)
- Town of Greece v. Galloway: Town Prayers and the Establishment of Religion (FindLaw's U.S. Second Circuit Blog)