Federal Court Rules Mountaintop Cross Violates Constitution

WASHINGTON, Jan. 4, 2011 -- A federal appeals court ruled today that a 43-foot-tall cross that sits atop Mount Soledad in La Jolla, Calif., violates the Establishment Clause of the Constitution.

The three-judge panel of the 9th Circuit Court of Appeals was unanimous in its decision.

"After examining the entirety of the Mount Soledad Memorial in context -- having considered its history, its religious and non-religious uses, its sectarian and secular features, the history of war memorials and the dominance of the Cross -- we conclude that the Memorial, presently configured and as a whole, primarily conveys a message of government of endorsement of religion," the panel said in its 50-page opinion.

The cross, which weighs approximately 24 tons, is visible for miles and overlooks a popular interstate. It was built in 1913 and then blew down in 1952. The current cross was erected in 1954 and was a memorial to American service members and a tribute to God's "promise of everlasting life."

The case had generated controversy for more than 20 years, during which time state and federal courts had considered its fate.

The cross stood for many years on city property, but in 2005 Congress designated it a national veteran's memorial and it was transferred to federal property. Over the years the memorial has been expanded and now also features 2,100 black stone plaques honoring fallen soldiers.

The Jewish War Veterans of the United States of America, joined by several residents of San Diego and represented by the American Civil Liberties Union filed suit arguing that the cross, sitting on federal land, sent a message of government endorsement of religion.

The court today recognized the controversy regarding the prominent pubic memorial and said, "We believe that no broadly applauded resolution is possible because this case represents the difficult and intractable intersection of religion, patriotism, and the Constitution."

Judge M. Margaret McKeown, writing for the panel, sent the case back to the lower court to decide whether the memorial could be modified to pass constitutional muster.

The ACLU and others have suggested moving the cross itself to nearby private property on a church.

"This is a clear victory for the plaintiffs and for religious liberty," said Daniel Mach, the director of the ACLU's Freedom of Religion and Belief. The court unanimously concluded that in displaying this giant sectarian symbol the government sends an unconstitutional message of religious favoritism."

The American Center for Law and Justice, which filed an amicus brief on behalf of 25 members of Congress supporting the cross, said the decision is flawed and represents "a judicial slap in the face to the countless military veterans honored by this memorial."

"We believe the appeals court got this decision wrong and we look forward to the case going to the Supreme Court where we're confident this decision will be overturned," the ACLJ said in a statement today.