The US Supreme Court on Monday declined to take up two cases involving a long-running dispute over whether the display of a 43-foot cross on government land atop Mount Soledad near La Jolla, Calif., violates the separation of church and state.
The cases offered to once again bring to the high court the thorny issue of whether religious symbolism on public property violates the First Amendment’s prohibition of the establishment of religion by government.
The hilltop site has been the location of a cross since 1913, with the current large cross on the hilltop since 1954. The underlying land was owned by the City of San Diego but was taken over by the federal government in 2006 through an eminent domain action by Congress.
In a three-page statement explaining the court’s decision not to take up the cases now, Justice Samuel Alito noted that a final decision had not yet been issued in the lower courts in California.
In its most recent ruling, the Ninth US Circuit Court of Appeals remanded the cases to a federal judge to determine whether there might be a remedy that would resolve the constitutional issue short of removing the cross.
“The court of appeals emphasized that its decision did not mean that the memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the memorial],” Justice Alito wrote.
“Because no final judgment has been rendered and it remains unclear precisely what action the federal government will be required to take,” Alito said, “I agree with the [Supreme Court’s] decision to deny the petitions [to hear the case].”
He noted that the denial was not a ruling on the underlying merits of the cases and that “the federal government is free to raise the same issue in a later petition following entry of a final judgment.”
Two years ago, the Supreme Court took up a similar case examining the constitutional implications of an eight-foot cross erected as a war memorial in California’s Mojave Desert.
In that case, the justices reversed a lower court decision ordering that the cross be removed from government land. Instead of approving the removal, the high court instructed a federal judge to consider allowing a land-swap that would convert the land under and around the cross to private property.
In referring to the 2010 case, Alito noted that a court-ordered demolition of the Mojave cross would have been viewed as an act of government hostility toward religion.
The La Jolla cross has been a target of litigation since the 1980s. Over the years, nonreligious features have been added to the site, including a large American flag and nearly 3,000 plaques and other displays honoring US military veterans.
The latest version of the cross saga began in 2006, after members of Congress voted to seize the hilltop site by eminent domain. The action transferred the property from the city to the federal government, but it didn’t end the church-state controversy.
In August 2006, two individuals and the Jewish War Veterans group filed suit in federal court charging that the presence of the cross on federal land violated the First Amendment’s Establishment Clause.
A federal judge disagreed, ruling that the addition of secular plaques and other war memorial items to the long-standing cross rendered the hilltop site primarily nonreligious.
A three-judge panel of the Ninth US Circuit Court of Appeals reversed the judge. The appeals court said the current display amounts to state endorsement of religion. But the court remanded the case back to the federal judge to decide what actions, if any, could be taken to allow the display to comply with constitutional requirements.