SAN DIEGO (AP) — A war memorial cross in a San Diego public park is unconstitutional because it conveys a message of government endorsement of religion, a federal appeals court ruled Tuesday in a two-decade old case.
A three-judge panel of the 9th U.S. Circuit Court of Appeals issued the unanimous decision in the dispute over the 29-foot cross, which was dedicated in 1954 in honor of Korean War veterans.
The court said modifications could be made to make it constitutional, but it didn’t specify what those changes would be.
“In no way is this decision meant to undermine the importance of honoring our veterans,” the three judges said in their ruling.
“Indeed, there are countless ways that we can and should honor them, but without the imprimatur of state-endorsed religion.”
U.S. Justice Department spokesman Wyn Hornbuckle said the federal government, which is defending the cross, was studying Tuesday’s ruling and had no comment.
The Alliance Defense Fund, an Arizona-based Christian legal group, called the ruling an insult to troops.
“The memory of those who sacrificed their lives for our freedom shouldn’t be dishonored because the ACLU finds a small number of people who are merely offended,” said Joe Infranco, the group’s senior counsel.
The ruling is the latest in a series of court decisions that have deemed the Mount Soledad cross unconstitutional because it stands on public property.
The legal fight began in 1989 when atheist Philip Paulson sued the city of San Diego over the cross. Paulson, a Vietnam War veteran, contended that the cross excludes veterans who aren’t
Christian. Jewish veterans groups also complained the cross excluded them.
State and federal judges have ordered the cross removed, saying it represents an unconstitutional endorsement of one religion. But in 2006, the U.S. Supreme Court blocked an order that the city take it down that summer, giving lower courts time to hear appeals.
City officials have argued that the cross is part of a secular war memorial, and the cross has been embraced by San Diego residents who in 2005 overwhelmingly approved a measure to preserve it by donating it to the federal government.
A judge declared the measure unconstitutional.
Infranco said Tuesday that no one is harmed by the presence of a cross on a war memorial.
“It’s tragic that the court chose a twisted and tired interpretation of the First Amendment over the common sense idea that the families of fallen American troops should be allowed to
honor these heroes as they choose,” he said.
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