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WASHINGTON, Jan. 23 (UPI) -- What is there about a cross, especially a cross erected on public land, that makes it such an attractive subject for the courts? Enormous amounts of money and court time are spent trying to keep a cross in place -- or trying to get one removed.
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Few fanatics seem to be involved in the struggle.
Unlike the new governor of Alabama, Robert Bentley -- who told a church gathering last week, "Anybody here today who has not accepted Jesus Christ as their savior, I'm telling you, you're not my brother and you're not my sister, and I want to be your brother" -- most defenders of public crosses just seem to be alarmed that religion is being driven from modern American life.
A generation ago, few would have questioned the right of Christians to erect a cross as a memorial, even on land owned by local government. Now, it must seem to many that legal challenges to public crosses put Christianity and U.S. culture itself on trial.
On the other side, the challengers say the Founding Fathers had compelling reasons to keep church and state separated.
The latest challenge to a cross on public land ended, at least for now, in a victory for challengers in the 9th U.S. Court of Appeals Jan. 4, reversing a judge's decision earlier in favor of the cross supporters. But both sides in the dispute say the case will wind up in the U.S. Supreme Court.
The appeals court opinion shows unusual sensitivity to the strong feelings of those who support and oppose the cross in the real world outside the courtroom.
The challenge brought by Jewish veterans and supported by civil liberties groups involves a massive cross on Mount Soledad, an 822-foot hill in the La Jolla community of San Diego. An appeals court panel said there has been a Latin cross on top of Mount Soledad since 1913. When it was first destroyed by vandals in 1923, a new cross was erected. That one blew down in 1952, and in 1954 the current cross was erected as a memorial to service members and a tribute to God's "promise of everlasting life."
The cross stands 29 feet high and is 12 feet across, atop a 14-foot-high base. It weighs 24 tons and is visible for miles.
The cross has been mired in controversy for the last 20 years.
"During this time," the appeals court said in its opinion, "the citizens of San Diego (where La Jolla is located), the San Diego City Council, the United States Congress, and, on multiple occasions, the state and federal courts have considered its fate. Yet no resolution has emerged."
The opinion acknowledged that its ruling would cause a good deal of pain.
"Indeed, we believe that no broadly applauded resolution is possible because this case represents the difficult and intractable intersection of religion, patriotism and the Constitution," the opinion said. "Hard decisions can make good law, but they are not painless for good people and their concerns."
The appeals panel said the purpose of the cross was initially religious.
"For most of its history, the cross served as a site for annual Easter services. Only after the legal controversy began in the late 1980s was a plaque added designating the site as a war memorial, along with substantial physical revisions honoring veterans," the opinion said. "It was not until the late 1990s that veterans' organizations began holding regular memorial services at the site. More fundamentally, this war memorial -- with its imposing Cross -- stands as an outlier among war memorials, even those incorporating crosses. Contrary to any popular notion, war memorials in the United States have not traditionally included or centered on the cross ... there is no comparable memorial on public land in which the cross holds such a pivotal and imposing stature, dwarfing by every measure the secular plaques and other symbols commemorating veterans."
It was the second time the appeals court had considered the constitutionality of the cross; originally on city public land, the site was transferred to the federal government in 2006 in a congressional initiative.
Despite its sympathy for the cross supporters, the appeals court said it was ruling for the challenge.
"Resurrection of this cross as a war memorial does not transform it into a secular monument," the opinion said. "We acknowledge the good intentions and heartfelt emotions on all sides of this dispute, and recognize the sincere anguish that will be felt regardless of whether we affirm or reverse the district court (judge). We also acknowledge the historical role of religion in our civil society. In no way is this decision meant to undermine the importance of honoring our veterans. Indeed, there are countless ways that we can and should honor them, but without the imprimatur of state-endorsed religion. At the same time, in adopting the First Amendment, the Founders were prescient in recognizing that, without eschewing religion, neither can the government be seen as favoring one religion over another. The balance is subtle but fundamental to our freedom of religion."
The panel added, "By claiming to honor all service members with a symbol that is intrinsically connected to a particular religion, the government sends an implicit message 'to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.'"
But the panel said its ruling did not mean the site "could not be modified to pass constitutional muster nor does it mean that no cross can be part of this veterans' memorial. We take no position on those issues."
"Anguish" over the decision brought out hundreds of protesters in San Diego Jan. 15, 10news.com reported. Amid the largely pro-cross crowd, resident Maressa Conover told the broadcaster, "This cross here does not establish a national religion. Anyone can come up here or they don't have to come here."
The ruling also inspired a group of California members of Congress to push for legislation to protect crosses at U.S. war memorials, Stars and Stripes reported.
A measure proposed by Republican U.S. Rep. Duncan Hunter would allow "religious symbols" in any federal military memorial, the report said -- sort of an end run around the courts.
"The War Memorial Protection Act is just as much about Mount Soledad as it is every other war memorial across the country," Hunter said in a statement quoted by Stars and Stripes. "In cases where religious elements are present, the fact that these monuments stand as symbols of military service and sacrifice does not change."
But other attempts by Congress to reverse constitutional rulings by the lower federal courts or by the U.S. Supreme Court have been unsuccessful. When Congress tried to overturn Miranda vs. Arizona -- a landmark 1966 ruling requiring police to tell suspects of their rights -- the Supreme Court ruled in 2000 that Miranda was a constitutional decision and Congress could do nothing about it.
However, not all is lost for cross supporters. A new five-member conservative majority holds sway on the nine-member Supreme Court, led by Justice Anthony Kennedy.
A cross erected as a veterans memorial in the Mojave Desert was challenged in court, but after Congress transferred ownership of the site from the federal government to a private veterans group, the Kennedy majority in the Supreme Court ruled in 2010 that the cross could stay.
