WASHINGTON — The Obama administration is asking the Supreme Court to allow a 43-foot-tall cross that serves as a war memorial to remain atop Mount Soledad in San Diego, arguing that the cross has been there since 1954 and is not an endorsement of religion.
The government should not be required “to tear down a cross that has stood without incident for 58 years as a highly venerated memorial to the nation’s fallen service members,” Solicitor General Donald Verrilli Jr. said in a new appeal to the high court.
He urged the justices to reverse a decision last year by the 9th U.S. Circuit of Appeals that said the cross was primarily a Christian symbol and unconstitutional. Its prominent display on public land in La Jolla amounted to an official “endorsement of religion” in violation of the First Amendment, the judges said in a 3-0 ruling.
If the justices take up the case later this year — which is likely — it could force them to finally resolve whether religious symbols, such as a cross or the Ten Commandments, can be prominently displayed on public land.
Two years ago, the high court rejected a challenge to the display of a small cross in the Mojave National Preserve, but the five justices in the majority disagreed on the reasons. The 9th Circuit’s latest opinion mostly ignored that ruling.
Since 1989, lawsuits from several veterans have challenged the Mount Soledad cross, arguing that a single religious symbol did not speak for all veterans. But city officials in San Diego and, more recently, the U.S. Congress have intervened to preserve the cross.
Critics say the cross is unquestionably a religious symbol, not a universal symbol that honors all fallen soldiers. The 9th Circuit judges said the cross “has never been used to honor all American soldiers in any military cemetery.” For example, Jewish soldiers often have a Star of David on their headstones in military cemeteries.
The 9th circuit judges also noted that until the 1980s, the Mount Soledad cross was a gathering place for Christians and a scene for Easter Sunday services. Its role as a war memorial came only after the litigation began, the judges said.
Defenders of the cross say it serves as a symbol of sacrifice and a memorial to honor the nation’s fallen soldiers dating back to World War I. In 2006, Congress moved to take possession of Mount Soledad and its cross to preserve the war memorial.
If the Supreme Court were to deny the appeal, Verrilli said, the cross would have to be taken down. Such an act “unnecessarily fosters the very divisiveness” over religion that the Constitution was designed to avoid, he said.
The justices are likely to decide later this spring whether to hear the case, now known as U.S. v. Trunk.