Judge orders Mt. Soledad cross removed, but saga probably isn't over

A federal judge’s order to remove the massive cross atop San Diego’s Mount Soledad may not be the final word on the long-running controversy over display of a religious symbol on public land.

US District Judge Larry Burns gave the city, the federal government, and the association that runs the memorial 90 days to dismantle the southern California landmark. But he also stayed that action pending the resolution of any appeal.

The five-page order, issued Thursday, makes clear that Judge Burns does not believe the Mount Soledad cross violates the First Amendment’s Establishment Clause. “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,” he wrote.

Nonetheless, the judge’s earlier decision permitting the cross to remain as part of a war memorial was overturned by a panel of the Ninth US Circuit Court of Appeals. The appeals court found that display of a cross on government land sends a “message of endorsement and exclusion” by the government.

Judge Burns noted that some members of Congress supported a bill to transfer the memorial site to a private entity, but that effort has bogged down.

“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,” the judge wrote. “As the Ninth Circuit noted in its opinion, the presence of this cross on public property has generated controversy for more than twenty years.”

Last year, the case made it to the US Supreme Court, but the justices declined to take up the issue, noting that a final decision had not yet been rendered in the cross case.

In a concurrence to that action, Justice Samuel Alito noted that the underlying issue in the Mount Soledad cross case is “a question of substantial importance.”

It is this comment that appears to have prompted Burns to issue a final ruling as a means to clear the way for the case to return to the high court for an examination of the Ninth Circuit decision.

“It is particularly appropriate for the court to issue a decision that advances this case to finality so that this question of ‘substantial importance’ can be clarified, perhaps by the US Supreme Court,” the judge wrote.

The case is Steve Trunk v. City of San Diego (06cv1597), consolidated with Jewish War Veterans v. Charles Hagel, Secretary of Defense (06cv1728).