Fed. gov’t reconsidering Mt. Soledad cross unconstitutionality

SAN DIEGO (CNS) – A lawyer for the organization that maintains the cross
atop Mt. Soledad in La Jolla said this week he's “very encouraged” that the
federal government has partially taken its side in a brief filed with the U.S.
Supreme Court.

In the filing this week, the U.S. Solicitor General says the government
agrees with the Mt. Soledad Memorial Association that the 9th Circuit Court of
Appeals was wrong when it ruled in 2011 that the cross was unconstitutional.

However, the brief also said the appellate court should be given time to
reconsider the decision.

Lawyer Jeff Mateer, general counsel of the Texas-based Liberty
Institute, told City News Service that the case should go straight to the high
court.

“Going to the 9th Circuit at this time would be futile,” Mateer said.

However, the Solicitor General's filing said since a stay is in place
for a ruling that would force the cross to be removed, no harm would be done by
following standard procedure.

The constitutionality of the cross, which is on a 14-foot-tall pedestal
for a total height of 43 feet, has been challenged in court since 1989.
Opponents contend the cross is a government endorsement of a particular
religion, while supporters say it is a war memorial first and foremost.

Mateer said thousands of war memorials around the country have religious
imagery.

The 9th Circuit ruling was that the cross violates the establishment
clause of the U.S. Constitution. The appellate justices ordered the case
returned to the district court level for disposition.

Supporters of the cross unsuccessfully appealed to the Supreme Court the
following year.

Then, in December, U.S. District Judge Larry Burns ordered the cross to
be removed in 90 days. However, the judge – who noted that he disagreed with
the action – issued a stay until appeals are exhausted.

Mateer said the Supreme Court justices didn't take the case the first
time because they wanted a definitive ruling from the district court level –
which they now have.

The filing by the Solicitor General says the 9th Circuit ruling on the
establishment clause goes against recent high court decisions. If the Supreme
Court takes the case, the government “will urge the court to overturn the
decisions,” the document says.

The filing is in the case of the Mt. Soledad Memorial Association v.
Steve Trunk, filed in 2006.