Associated Press Tue Mar 4, 2014 5:44 PM
SAN DIEGO — A veterans group on Tuesday asked the U.S. Supreme Court to overrule an order to remove a war memorial cross from a San Diego mountaintop after it was found to violate the constitutional separation of church and state.
The Mt. Soledad Memorial Association already had asked the 9th U.S. Circuit of Appeal to allow the 43-foot cross to remain, as had the U.S. Department of Justice. But the veterans group said it wanted to leapfrog straight to the nation’s highest court to hasten a resolution to a legal dispute that began in 1989.
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. After the Supreme Court declined to review it, the case went back to a district judge to consider possible alternatives.
In December, the district judge, Larry Burns, ordered the cross removed in 90 days, declaring “it’s time for finality” 22 years after another judge ordered the cross to be taken down. Burns said he didn’t believe the cross represented a government attempt to promote religion but acknowledged that the appeals court ruled differently.
Advocates of letting the cross stay are emboldened by Supreme Court Justice Samuel Alito’s statement that the dispute raised a “question of substantial importance.” They are essentially counting on another defeat at the appellate level and hoping for a more sympathetic audience at the high court.
“We’re asking them to take the case without having to require us to plow through the 9th Circuit because there’s really nothing left to do at the 9th Circuit,” said Hiram Susser, an attorney for the Liberty Institute, which represents the veterans group.
If the Supreme Court rejects the petition, the veterans group will continue to plead its case to the appeals court, a process that could take more than two years, Susser said.
The cross, which offers sweeping views of San Diego, was erected in 1954. The American Civil Liberties Union and Jewish War Veterans sued the federal government in 2006 after the land on which the cross sits was transferred from the city to the federal government.