SAN DIEGO (AP) — The U.S. Justice Department says a war memorial cross should remain on federal property atop a San Diego mountain, but it disagrees with cross supporters that an appeal should leapfrog straight to the U.S. Supreme Court.
The administration of President Barack Obama said an appeals court ruling declaring the 43-foot monument on Mount Soledad a violation of the constitutional separation of church and state undermined an act of Congress and conflicted with recent Supreme Court decisions.
But, in a filing Monday to the nation’s highest court, it said an appeal should first be considered by the 9th U.S. Circuit Court of Appeals because there is no imminent risk that the cross is removed. Last month, the Mt. Soledad Memorial Association asked to skip the appeals court and go straight to the U.S. Supreme Court, saying it wanted to hasten resolution to a legal dispute that began in 1989.
The brief by Solicitor General Donald B. Verrilli Jr. said “additional time for reflection” may cause the 9th Circuit to reconsider its position. It says the Justice Department will appeal to the Supreme Court if it loses.
The 9th Circuit has been an unfriendly venue to advocates of the cross, ruling in 2011 that it was unconstitutional because it sits on federal property and sending the case back to U.S. District Judge Larry Burns to consider alternatives. In December, Burns reluctantly ordered that the cross be removed but said his order would be put on hold pending appeals.
“So long as the stay remains in place, this case can proceed along the usual procedural course without causing immediate harm to the public interest,” the Justice Department wrote in its brief.
The concrete cross was erected in 1954 to the memory of veterans of World War I, World War II and the Korean War. The federal government seized the property from the city of San Diego in 2006 through an act of Congress in an effort to prevent it from being removed.
James McElroy, an attorney for plaintiffs who have challenged the cross, said the Justice Department made the right call by refusing to join the war memorial association’s call for an immediate appeal to the Supreme Court.
“This is not a case where the cross is going to be ripped out of the ground anytime soon,” McElroy said. “There’s no reason to not go the normal course.”