- The Washington Times - Thursday, August 22, 2013

A group of Republican lawmakers has joined the fight to stop a federal court from ordering the removal of a giant white cross that has loomed for decades over the Mount Soledad Veterans War Memorial in San Diego.

The brief filed Thursday on behalf of the congressional representatives requests that the court let a private group acquire the entire war memorial, including the cross. The move is likely to put added pressure on the Obama administration, with the Justice Department facing a deadline of the end of the month to state its position.

“We’re urging the court to permit a private organization to obtain and operate the war memorial — a remedy that would remove any constitutional questions and protect this long-standing tribute to our men and women in uniform,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, which filed the brief on behalf of the lawmakers.

The American Civil Liberties Union filed a July 22 brief asking the U.S. District Court to order the removal of the cross in response to a 2011 court decision that ruled the cross display unconstitutional, saying that “the only proper remedy is to order the government to move the Mount Soledad Cross from its current location.”

That doesn’t mean the cross should be destroyed. “Doing so would by no means require the destruction of the cross, which could be transported and displayed at an appropriate location on private property,” said the ACLU, which represents the Jewish War Veterans of the U.S.A.

A local church has offered to take the cross, made of recessed concrete, which stands 29 feet high, 43 feet with its base.

The court battle over the cross has been waged since 1989, when an atheist Vietnam War veteran filed a lawsuit against the display. San Diego voters cast ballots on the issues at least twice before the federal government used its power of eminent domain to obtain the memorial in 2006.

The 9th U.S. Circuit Court of Appeals ruled in 2011 that displaying the cross violates the Constitution, saying that the “use of such a distinctively Christian symbol to honor all veterans sends a strong message of endorsement and exclusion.”

In June 2012, the Supreme Court declined to hear the case, making the 9th Circuit decision the final word on the cross’s constitutionality.

During the 24-year legal fight, supporters of the cross attempted several times to have the memorial transferred to new ownership, but they were thwarted by the courts.

Daniel Mach, director of the ACLU’s Program on Freedom of Religion and Belief, said that any land swap would have to stand on its merits.

“We’d certainly be skeptical of any sale or land transfer that is rigged to keep things exactly as they are today,” said Mr. Mach.

Still unknown is the position of the Obama administration, which is required to file its brief on how to comply with the 2011 ruling by Aug. 30. The George W. Bush administration had championed efforts to retain the cross.

In its brief, the American Center for Law and Justice noted that in a 2010 case, Salazar v. Buono, the Supreme Court had ruled in favor of a group fighting to keep the Mojave Memorial Cross, part of a war memorial at the Mojave National Preserve in California.

“A sale or transfer of the memorial to a private organization would remedy any perceived governmental endorsement of religion,” said the ACLJ brief. “The terms of the acquisition would not dictate what particular items that the organization must keep, add, or remove from the Memorial as it presently stands, but rather would reflect the secular purpose of maintaining a veterans’ memorial on the property.”

The first opportunity to acquire the memorial should be given to the Mount Soledad Memorial Association, which has “worked tirelessly to improve and preserve the Memorial for many years,” according to the brief.

The members of Congress joining the brief include Rep. Duncan Hunter, California Republican and an Iraq/Afghanistan veteran whose district includes the Mount Soledad memorial.

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