- The Washington Times - Tuesday, January 4, 2011

A cross perched atop San Diego’s Mount Soledad for nearly a century is unconstitutional and must be removed, according to a federal court ruling Tuesday.

The 9th U.S. Circuit Court of Appeals rejected arguments that the 43-foot cross should be preserved as a war memorial, ruling that it violated the California Constitution’s “no preference” clause by elevating one religion over all others.

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

The court also noted that the site had been used for purposes other than those of honoring fallen soldiers. For many years, Mount Soledad has been a destination for Easter services, and had been listed on maps until the late 1980s as the “Mount Soledad Easter Cross.”

The court said that the cross’s designation as a war memorial came “only after the legal controversy began in the late 1980s.”

The Alliance Defense Fund, which has defended the placement of crosses at war memorials, blasted the decision, insisting that the cross should remain to honor the sacrifices made by American troops.

“War heroes have earned the right to be remembered,” said ADF senior counsel Joe Infranco. “The memory of those who sacrificed their lives for freedom shouldn’t be dishonored because the ACLU finds a small number of people who are merely offended.”

The monument has seen three versions of the Christian cross since 1913. The latest cross, erected in 1954 in honor of Korean War veterans, was challenged in 1989 by two Vietnam War veterans in a lawsuit against the city of San Diego.

The next 20 years have been marked by legal and political squabbling as fans and foes of the cross went to battle in the courts and the ballot box.

The city’s efforts to end the fighting by selling the site to the Mount Soledad Memorial Association were circumvented twice by the courts. In one case, the court ruled that the city was giving preferential treatment to an organization that intended to keep the cross.

Two California Republican congressman attempted to save the cross in 2005 by designating the site as a national veterans’ memorial, which allowed the federal government to receive the property as a donation.

But the San Diego city council refused to do so over fears that the transfer might be unconstitutional. A vote to save the cross passed easily, but was then challenged in court.

The cross’s backers appeared to claim victory earlier this year when a bill to seize the property under eminent domain passed, and the federal government took control of the site. Tuesday’s decision is likely to be appealed to the Supreme Court.