(CN) – The 9th Circuit declined Friday to reconsider the fate of San Diego’s Mount Soledad cross, which it judged unconstitutional and Christian-centric earlier this year.
A three-judge panel rejected the federal government’s petition for a rehearing of the long-running debate over the mountaintop war memorial that includes a towering, 43-foot cross. A majority of 9th Circuit judges also refused to hear the case en banc. The Pasadena-based federal appeals court ruled in January that the cross violated the U.S. Constitution’s Establishment Clause, finding that it gave rise to the impression that the memorial was honoring only Christian soldiers.
First erected in the La Jolla section of San Diego in 1913, the cross has been an object of controversy, lawsuits and local initiatives for at least 20 years. The federal government took possession of the land in the late 1980s, and only then did it become a war memorial. The Jewish War Veterans of the United States, individual veterans and the American Civil Liberties Union filed the present action in 2006. U.S. District Judge Larry Burns in San Diego granted summary judgment to the government in 2008.
In its January reversal, the appellate panel did not specifically order removal of the cross, but it did find that its history – and La Jolla’s documented history of anti-Semitism – belied Congress’ assertion that the memorial, with the cross at its center, was primarily secular.
An impassioned dissent by Judge Carlos Bea Friday likened the 43-foot cross to a display of the Ten Commandments at the Texas State Capital, which the U.S. Supreme Court found constitutional in 2005’s Van Orden v. Perry.
“For the same reason that the Ten Commandments stand today in that park in Austin, Texas, the cross should continue to stand on Mt. Soledad: a religious symbol is not always used to promote religion,” Bea wrote in a 20-page dissent to the denial for rehearing, in which four other judges joined.
Bea argued that San Diego’s history and present as a military town, and the fact that the cross has stood, in one form another, for nearly a century, justify leaving the memorial as it is.
“Situated between Camp Pendleton and Naval Base San Diego, Mt. Soledad is a memorial to the sacrifice made by many soldiers who have protected this country over the years, regardless of their religion,” Bea wrote. “And it is a promise to those current soldiers, a promise that we appreciate the sacrifice they are willing to make for our freedom and that, if they pay the ultimate price, we will remember them. The cross has stood at the entrance to this memorial for almost 100 years. It has taken on the symbolism of marking the entrance to a war memorial. We should leave it be.”