Supreme Court Denial Puts War Memorial Cross in Jeopardy

The Supreme Court’s denial today of a pair of cases, Mount Soledad Memorial Associate v. Trunk and United States v. Trunk, puts a nearly 60-year-old war memorial in jeopardy, but there is still hope.

The legal battle surrounding this memorial to our nation’s veterans has raged for decades. At issue, the war memorial contains a cross.

In 2006, Congress took the memorial by eminent domain from the city of San Diego because a court threatened to shut it down. At the time, Congress noted:

The Mt. Soledad Veterans Memorial was dedicated on April 18, 1954, as “a lasting memorial to the dead of the First and Second World Wars and the Korean conflict” and now serves as a memorial to American veterans of all wars, including the War on Terrorism.

Last year, the Ninth Circuit Court of Appeals held that the federal government’s operation of the Mt. Soledad Veterans Memorial cross was unconstitutional.

The Supreme Court’s denial of cert means that the appeals court decision stands. However, there is still hope to save this memorial, as Justice Alito explains in the denial order:

The current petitions come to us in an interlocutory posture. The Court of Appeals remanded the case to the District Court to fashion an appropriate remedy, and, in doing so, the Court of Appeals emphasized that its decision “d[id] not mean that the Memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the Memorial].” . . .

Our denial, of course, does not amount to a ruling on the merits, and the Federal Government is free to raise the same issue in a later petition following entry of a final judgment.

Justice Alito also noted that just two years ago, in Salazar v. Buono, the Supreme Court upheld the transfer of a cross from public to private hands. He stated, “Congress was ultimately able to devise a solution that was ‘true to the spirit of practical accommodation that has made the United States a Nation of unparalleled pluralism and religious tolerance.’”

The ACLJ, representing 34 Members of Congress, filed an amicus brief asking the Court to take this case. We will continue to closely follow this case on remand and work with Members of Congress to fight for this important war to stand.

6.26.2012 Update: Representative Darrell Issa (CA-49) has issued a statement calling for the veterans memorial to be preserved:

The Supreme Court's announcement today is a disappointment to all of us who hoped that it would review the case and set aside this assault on religious expression and on a special place where San Diegans honor the service of veterans. That did not happen, and the case will now be returned to the district court for further consideration. . . .

We will continue to work towards an outcome that preserves the Memorial as a tribute to the sacrifices of veterans who served to protect freedom.