Mt. Soledad cross won't get high court hearing, yet


WASHINGTON — The U.S. Supreme Court has delivered another setback — though not a final one — to the effort to preserve a cross in a southern California veterans memorial.

The justices announced Monday they would not review a lower court ruling in the case while they await a final decision by a federal judge on the Mount Soledad Veterans Memorial in San Diego. The Ninth Circuit Court of Appeals in San Francisco ruled in 2011 that the 29-foot cross that is part of the memorial is an unconstitutional establishment of religion.

Meanwhile on Monday, the high court again failed to announce the most highly anticipated decision of its term. The justices did not rule on the controversial 2010 health-care law often referred to as "Obamacare." The court, which heard oral arguments regarding the law over the span of three days in March, is expected to announce its opinion Thursday.

In the Mount Soledad case, Associate Justice Samuel Alito wrote an opinion in which he said he agreed with the decision not to review the Ninth Circuit ruling "[b]ecause no final judgment has been rendered and it remains unclear precisely what action the Federal Government will be required to take."

The Ninth Circuit returned the case to a federal judge for a proper solution and emphasized its ruling "d[id] not mean that the Memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the Memorial]," Alito pointed out.

"Our denial, of course, does not amount to a ruling on the merits, and the Federal Government is free to raise the same issue in a later petition following entry of a final judgment," he wrote.

The Mount Soledad cross, which was dedicated in 1954, originally honored Korean War veterans but later became a memorial for all veterans. Plaques with the names and photographs of veterans, as well as various religious symbols for them, were installed around the cross in 1999.

In October, the full Ninth Circuit refused to review its three-judge panel's ruling against the cross, but five of its judges dissented. The panel's decision had overturned a ruling by a federal judge in San Diego that the cross is constitutional because it is one element in a larger war memorial that honors all veterans.

Advocates for the memorial maintained some optimism.

"While we are disappointed the Court did not accept this case for review at this time, we are hopeful we can find a solution that will allow this veterans memorial to remain where it has stood for over half a century," said Allyson Ho, lead counsel for the Mount Soledad Memorial Association, in a written release.

The federal government joined the memorial association in advocating for the cross' constitutionality.

In 2010, the Supreme Court ruled in favor of permitting a cross to remain in a veterans memorial in the Mojave Desert. Writing for a 5-4 majority, Associate Justice Anthony Kennedy said the "goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm."

Meanwhile, in an opinion released Monday, the justices gave only a partial victory to Arizona in its effort to deal with the large number of illegal immigrants in the state.

A 5-3 majority upheld a provision in the 2010 state law that requires a police officer to check the legal status in some cases of a person whom he detains or arrests before he is released. The court, however, ruled in favor of the federal government in striking down sections that: (1) outlaw the failure to carry proper immigration documents; (2) criminalize applying for or holding a job as an illegal immigrant, and (3) authorize a police officer to arrest without a warrant a person whom he believes has committed a crime that would cause him to be deported.

Kennedy wrote the court's opinion. Associate Justice Elena Kagan recused herself because of her involvement in the case as solicitor general for the Obama administration.

— BP

Published, June, 25, 2012



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