Mount Soledad Cross Still Unconstitutional

A three-judge panel at the 9th U.S. Circuit Court of Appeals has denied petitions to rehear a case which deemed the Mount Soledad Cross to be unconstitutional. The court earlier ruled the cross’ presence to be in of the Constitution.

The current cross, the third to be erected since 1913, is claimed by some to be part of a larger Korean War memorial. Opponents of the cross, including the and the Jewish War Veterans of America, believe the cross is an “unmistakable representation of Christianity.”

Although the ruling was not considered by proponents to be a victory, what’s most exciting, they say, is the lengthy dissenting opinion of judges Diarmuid O’Scannlain, Richard Tallman, Conseuelo Callahan and Sandra Ikuta.

“The Cross stood unchallenged for 40 years,” they wrote. “Mt. Soledad is a memorial to the sacrifice made by many soldiers who have protected this country over the years, regardless of their religion. The Cross has stood at the entrance to the memorial for almost 100 years [and has] taken on the symbolism of marking the entrance to the war memorial. We should let it be.”

Attorney Charles Berwanger, who represents the , believes the ruling to not rehear the case bodes well for the cross’ preservation.

“There is strong optimism that if the , who would be the ones to appeal the ruling to the Supreme Court, moves forward, that given the court’s composition, that they would rule favorably,” Berwanger said, furthering a belief the court would allow the memorial to stand as-is.

“The dissenters said the three-judge panel failed to consider recent history, and they took them to task for that,” he said.

The federal government’s acquisition of ownership, which states that “Congress sought to preserve a historically significant war memorial,” is also to be considered, he said.

San Diego-based attorneys Marc Randazza and James McElroy disagree.

Randazza, who is not directly connected to the case, said he believes the dissent is “garbage.”

“This is a concerted effort to destroy the separation of church and state, and I can’t believe the lies Christians will tell to preserve their symbols of superstition,” said Randazza, a First Amendment lawyer. “Not to mention that the cross is hideous. It looks like an art deco bomb that went off in Miami in 1993. At least erect something beautiful.”

McElroy first became involved with the case in 1989 when he was retained by the late Phillip K. Paulson, an atheist. “For anyone to claim that the cross is not a religious symbol would not be very credible,” McElroy said. In a lawsuit filed against the city, Paulson alleged the cross’ presence violated both the Constitution and the First Amendment.

Parties on both sides believe an appeal to have the case heard before the U.S. Supreme Court is imminent. Because the matter will not be fully resolved until that time, the Liberty Institute has filed a motion with the 9th Circuit Court of Appeals requesting a delay in ordering changes until an appeal has been filed.

“[The cross] is a symbol that stands in honor of the U.S. armed forces and the brave individuals who sacrificed their lives in service to the United States,” said Liberty Institute President and Mt. Soledad Memorial Association attorney Kelly Shackleford. “The outcome of the Mt. Soledad Memorial not only affects past and current members of the armed forces, but it affects future generations of Americans.”

City News Service contributed to this report.