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Cross on public land in San Diego is unconstitutional, federal court rules

January 4, 2011 |  3:48 pm

The 43-foot cross atop public land on Mount Soledad in San Diego is an unconstitutional endorsement of a religion, a federal appeals court ruled Tuesday, the latest twist in a two-decade legal struggle.

But the 9th Circuit Court of Appeals did not order the cross removed, as the Jewish War Veterans and other litigants, backed by the American Civil Liberties Union, had hoped.

Instead, Judge M. Margaret McKeown sent the case back to a federal trial judge for "further proceedings" on the issue of whether the cross can be modified to "pass constitutional muster" as a war memorial.

Tuesday's ruling was in response to an appeal from a July 2008 ruling by Judge Larry Burns that the cross was part of a war memorial and thus could remain.

The property surrounding the cross has been controlled by the U.S. Department of Defense since 2006, a move that cross-supporters on the City Council and Congress thought would protect it from a court ruling that a cross on public property is improper.

McKeown wrote that "having considered its history, its religious and non-religious uses, its sectarian and secular features, the history of war memorials and dominance of the Cross -- we conclude that the Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates" the constitutional provision of separation of church and state.

The ruling did not suggest methods that the cross and surrounding property could be reconfigured. That presumably will be the subject of continuing litigation.

Defendants in the case  were the city of San Diego, the U.S. government, and Secretary of Defense Robert M. Gates.

In recent years, hundreds of small plaques are been erected on walls at the base of the cross in honor of military veterans of all faiths. But McKeown said that did not change the fact that the cross is primarily a Christian symbol.

The Washington-based American Center for Law and Justice, which had filed a brief on behalf of 25 members of Congress who support the cross, called the decision "a judicial slap in the face to the countless military veterans honored by this memorial." Jay Sekulow, chief counsel for the group, said he looks forward to the case going to the U.S. Supreme Court.

The ACLU hailed the decision. "We honor those who have served, but the Constitution does not allow the government to exclude non-Christians by endorsing a clearly religious symbol," said David Blair-Loy, legal director of the ACLU chapter of San Diego and Imperial counties.

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-- Tony Perry in San Diego

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