Obama Administration lawyers back the Mount Soledad Memorial
An interesting, if not unexpected, development in the Mount Soledad Memorial case:
WASHINGTON — Obama administration lawyers have told the Supreme Court they will strongly defend the 29-foot-tall cross atop Mount Soledad in San Diego as a memorial to the nation’s war veterans and not an unconstitutional promotion of Christianity by the government.
But they also said the 9th Circuit court in San Francisco should be given “additional time for reflection” to correct its mistake and uphold the constitutionality of the cross.
The administration’s position, sent to the court this week, means the high court will likely have to decide the fate of the San Diego cross, but not this year.
I did an interview with Jacob Gershman, the legal affairs reporter for Wall Street Journal on this last week. Right now there are basically four cases either working their way through the courts, or (hopefully in one case) successfully concluded. The Bladensburg Cross that I discussed a few weeks ago being one of them, the Mohave Cross (that appears to be safe now) and a somewhat related North Carolina case that CAN BE VIEWED HERE.
As I told Mr. Gershman, part of the problem is that the Supreme Court really hasn't ruled on the cross as a memorial yet. Every time a case gets to them, it ends up being on issues not actually related to the cross. Whether it is a land transfer issue, a issue of standing, or whether the decision below has "ripened" the Supreme Court basically keeps punting on the issue.
As I also tol Mr. Gershman, I think both sides sort of want the same thing; a brightline rule on what is allowed and what isn't. My belief is that all of the Memorials will stay, based on a certain "historicity"; i.e. that the memorials have been around for so long that they've taken on a historical basis. I think it would be different if folks were putting up crosses willy-nilly on Federal Property and claiming they are veterans memorials. But all of these have been around for a long time.
But the Supreme Court has been really bad about brightline rules in Religion cases. Take for instance the cases of Van Orden v. Perry and McCreary County Kentucky v. ACLU. Both dealt with 10 Commandments displays on Federal Property, and both were 5-4 decisions. Unfortunately, in one they said the Memorial could stay, and in the other it had to go. If you click the names of the cases above it will take you to the wiki page for each case, but trying to figure out the rule on what can stay and what must go isn't all that easy.
Either way, it's good to see the Administration backing the Memorial. As the article notes above though, it is unlikely that this gets resolved anytime soon.