Hope Remains for Mount Soledad Cross Supporters Despite Denial

The Supreme Court denied review of the Mount Soledad cross dispute on Monday, but it left the door open for further judicial review -- and Establishment Clause clarification -- pending a final judgment on the fate of the cross.

Justice Samuel Alito issued a statement in today's orders, explaining that, while he agreed with the Court's decision to deny certiorari in the matter, it was only because the case was not yet ripe for Supreme Court review.

In January 2011, a Ninth Circuit Court of Appeals panel ruled that Mount Soledad Memorial, “presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause.” The Ninth Circuit denied en banc rehearing last October in a 6-5 vote.

While the cross and the veterans’ memorial on Mount Soledad have generated controversy over the last 20 years, there have been crosses on Mount Soledad for nearly a century. The first Mount Soledad cross was erected 1913. That cross was replaced in the 1920s, and its successor blew down in 1952. Court records indicate that the current cross was dedicated in 1954 “as a reminder of God’s promise to man of everlasting life and of those persons who gave their lives for our freedom.”

For most of its history, the cross served as a site for annual Easter services. After the legal controversy began in the late ’80s, a plaque was added - along with substantial physical revisions - designating the site as a war memorial. Veterans’ organizations began holding regular memorial services at the site in the late ’90s. Ownership of the cross was transferred to the federal government through a 2006 congressional initiative.

The Supreme Court previously saved the monument in 2006, blocking a removal order to give the lower courts time to consider arguments in the matter, reports the AP. Now, the Nine want the lower courts to make a determination regarding whether to modify or remove the cross. Regardless of the outcome, it’s likely that the case will make its way back to the Supreme Court, potentially allowing the justices to make sense out of the Court’s Establishment Clause jurisprudence.

In his statement, Justice Alito referenced Justice Thomas’ dissent in Utah Highway Patrol Association v. American Atheists, Inc., writing, “This Court’s Establishment Clause jurisprudence is undoubtedly in need of clarity … and the constitutionality of the Mount Soledad Veterans Memorial is a question of substantial importance.”

Though the statement can’t guarantee a future grant of certiorari, a federally-owned 43-foot cross would make for a tempting test case, and Justice Alito cleverly notes that Justice Kennedy and Chief Justice Roberts agreed in Salazar v. Buono that “the goal of avoiding governmental endorsement [of religion] does not require eradication of all religious symbols in the public realm.”

Roberts, Kennedy, Alito, and Thomas? It seems like there are enough votes on the Court to grant certiorari when the issue is ripe.

Related Resources:

• Trunk v. San Diego (FindLaw’s CaseLaw)
• San Diego’s Mt. Soledad Cross Ruled Unconstitutional (FindLaw’s Decided)
• No Supreme Court Review for Forsyth County Prayer Case (FindLaw’s Fourth Circuit Blog)