Mt Soledad Memorial Cross Ruled Unconstitutional. Again.
US District Judge Larry Burns ruled that the Mount Soledad war memorial cross must be removed from its perch above San Diego, but he immediately stayed his own order pending appeals.
While recent news reports have focused on the order to remove the cross, this is actually old news in the two-decade old case, and Judge Burns has essentially acted only to move the case forward — not end it. In fact, Judge Burns disagrees with his own ruling:
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.
His prior ruling was overruled at the 9th Circuit, and the Supreme Court essentially declined the case because it wasn’t “finalized.” Now that he’s issued a final ruling, the case can be appealed, again, and revisit the Supreme Court — assuming the Justice Department, which has been defending the cross, appeals.
A provision to specifically protect the ability to have religious elements in war memorials was rejected in this year’s National Defense Authorization Act.
Despite the apparent gloom and doom in the press (or celebration, depending on the side of the issue), the Supreme Court’s historical view on similar issues makes it unlikely — though still possible — the cross will eventually be torn down.