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Cross supporters hold out hope in appeal of judge's order to take religious symbol down

Published: Monday, Dec. 16 2013 6:10 p.m. MST

In a longstanding legal case that has become emblematic of the contentious battles over religious expression in public places, a federal judge has ordered that the giant cross atop Mount Soledad in San Diego must come down in 90 days.

Lenny Ignelzi, Associated Press

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In a longstanding legal case that has become emblematic of the contentious battles over religious expression in public places, a federal judge has ordered that the giant cross atop Mount Soledad in San Diego must come down in 90 days.

But U.S. District Judge Larry Burns stayed his order Thursday pending an appeal.

Charles LiMandri, an attorney for the Mount Soledad Memorial Association, told the Associated Press that Supreme Court Justice Samuel Alito signaled that the group backing the cross could return directly to the nation's high court if it disapproved of Burns' ruling.

"Unless the U.S. Supreme Court denies review or takes it and finds it unconstitutional, that cross isn't going anywhere," LiMandri said. "At that point, we'll go to Congress. We're not giving up."

The high court declined to take up the issue last year, noting that a final decision had not yet been rendered in the cross case, the Christian Science Monitor reported. In a concurrence to that action, Alito noted that the underlying issue in the Mount Soledad cross case is “a question of substantial importance.”

But it's up to the federal government whether to appeal again.

Built in 1954, the 43-foot cross on city land is one of the most visible landmarks in San Diego, the Los Angeles Times reported. Starting in the early 1990s, plaques honoring military veterans have been placed on walls surrounding the base of the cross.

But the American Civil Liberties Union, representing the Jewish War Veterans of the United States of America and several local residents, sued, saying the cross on public property is an unconstitutional endorsement of religion.

Burns wrote in his order that he still believes the cross "cannot be reasonably viewed as our government’s attempt to establish or to promote religion."

But his initial ruling was overturned by the 9th Circuit Court of Appeals and Burns wrote that it's time to resolve the matter, according to the Monitor.

"Judge Burns noted that some members of Congress supported a bill to transfer the memorial site to a private entity, but that effort has bogged down," the Monitor reported. “The mere possibility that Congress will act to transfer the Mount Soledad Memorial to private interests is not a reason to delay this case further … as the Ninth Circuit noted in its opinion, the presence of this cross on public property has generated controversy for more than twenty years.”

Deacon Keith Fournier, a constitutional lawyer, wrote in Catholic Online that the case has come to stand "as a symbol to many of the growing hostility toward religious symbols in the United States of America" and the latest ruling should be appealed.

"The effort to scrub the public square of religious expression and symbols is a threat to religious freedom, runs contrary to our founding documents, and is unfaithful to our history as a free people," he wrote. "It also represents an incorrect application of the Establishment Clause, found in the First Amendment to the United States Constitution.

But religion scholar Mark Silk wrote in his Religion News Service blog that the 22-year-old legal squabble has also come to represent one faith trying to outshow another.

"What’s going on here is a fight over Christian claims on the country’s civic spaces. As those claims are contested, in court and elsewhere, there’s pushback, most evident in the annual railing against the supposed war on Christmas," he wrote. "What’s seems to be prevailing is not a secular public square limited to civic symbols accessible to all, but a Pantheon for everyone’s spiritual wares."

Email: mbrown@deseretnews.com

Twitter: @deseretbrown

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