Us Supreme Court Refuses To Hear Appeal In Mt Soledad Cross Case

San Diego’s Mt Soledad Cross

One bit of good news from the Supreme Court today was it refused to hear an appeal in Trunk v. City of San Diego which concerned the constitutionality of the San Diego’s Mt. Soledad Cross. By refusing to hear the appeal it let stand the 9th Circuit’s last ruling in the long fought 1st Amendment case which said the cross now on Federal land is still unconstitutional. Of course one justice took the unusual step to issue a statement and possible hint to pro-cross people on how to keep the cross on Mt. Soledad.

The 9th Circuit ruled in January of 2011:

For most of its life, the Memorial has consisted of the Cross alone. The Cross is the third in a line of Latin crosses that has stood on Mount Soledad since 1913….. There was no physical indication that the Cross was intended as a war memorial, however, until a plaque was added to the site in 1989, after litigation over the Cross had begun. At the same time, the Cross’s religious nature has been widely recognized and promoted since it was first erected…. The Cross’s importance as a religious symbol has been a rallying cry for many involved in the litigation surrounding the Memorial…. La Jolla—where the Memorial is located and serves as a prominent landmark—has a history of anti-Semitism that reinforces the Memorial’s sectarian effect….

The use of such a distinctively Christian symbol to honor all veterans sends a strong message of endorsement and exclusion. It suggests that the government is so connected to a particular religion that it treats that religion’s symbolism as its own, as universal. To many non-Christian veterans, this claim of universality is alienating…

In reaching its conclusion, however, the court added:

This result does not mean that the Memorial could not be modified to pass constitutional muster nor does it mean that no cross can be part of this veterans’ memorial. We take no position on those issues.

9th Circuit: Mt. Soledad Cross Violates Establishment Clause

The last part of the decision was used by Justice Alito as a heads up to people who want to keep the cross:

The current petitions come to us in an interlocutory posture. The Court of Appeals remanded the case to the District Court to fashion an appropriate remedy, and, in doing so, the Court of Appeals emphasized that its decision “d[id] not mean that the Memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the Memorial].”….. Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will be required to take, I agree with the Court’s decision to deny the petitions for certiorari.

Our denial, of course, does not amount to a ruling on the merits, and the Federal Government is free to raise the same issue in a later petition following entry of a final judgment.

Statement of JUSTICE ALITO respecting the denial of the petitions for writs of certiorari.

The problem is the case is more than 20 years old and the City of San Diego tried to cover up the intent of the cross by tacking on religious and other non-religious symbols in various ways since 1989 when the case got started. The people who want to keep the cross lost in every court and now even the federal government lost.

Latin crosses don’t honor ALL veterans no matter how you try to cover it up. The Latin cross is not generic – that has been clear since 1989.

This should be the end of the case but probably it won’t be because people who want to take down the wall of separation of church and state want to bulldoze it and cram the pieces down our throats.