Attorneys and activists involved in protecting the 29-foot-tall cross (43 feet, including its base) say they applaud Friday's ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals nullifying a lower court's 2005 order requiring the removal of the cross from public land.
But no one is declaring victory.
Brian Rooney, spokesman for the Thomas More Law Center, said the court basically dismissed atheist Philip Paulson's 17-year-old lawsuit seeking the removal of the cross from a San Diego park.
But the judges didn't rule on the merits of the case or the cross, he said.
They reasoned that because Paulson is now dead and because the cross and the Korean War memorial where it stands now belong to the federal government, the case is moot.
"There is no cause of action anymore, there's no case or controversy," Rooney said. "The case is dead, as far as the 9th Circuit is concerned."
Congress, prompted by Rep. Duncan Hunter, R-Calif., passed a bill late last summer allowing the federal government to acquire the property by eminent domain. That took it out of the jurisdiction of a federal district judge who had ordered San Diego to remove the cross or face $5,000 a day fines.
The 9th Circuit also dismissed the fines.
But Gary McCaleb, senior counsel for the Alliance Defense Fund, which filed a friend-of-the-court brief in the case, said the victory is only temporary. The American Civil Liberties Union has filed another lawsuit -- on behalf of another atheist -- challenging whether the federal government may own a cross.
"The question of whether you can honor your war dead by using a cross is long overdue to be cleared up," McCaleb said. "It's time the Supreme Court weighed in and made clear, once and for all, that a cross that memorializes war dead is entirely constitutional."
What's at stake, pro-family attorneys say, is the ability to place Ten Commandments or other religious displays nationwide.
"If this cross goes, there's a bunch of crosses in Arlington National Cemetery that are going to go," McCaleb told CitizenLink.
William Kellogg, president of the Mt. Soledad Memorial Association, which put the cross up, has been fighting to preserve it for nearly 20 years now -- and plans to continue.
"It's a very important monument to people from all walks of life in San Diego," he said. "We've had two citywide votes on this, and both of them have garnered over two-thirds support. So it's clear that from a public-opinion standpoint, that it has very broad-based, incredibly strong support from the community."
McCaleb said the legal case for the cross has clearly been helped by civic-minded defenders like Kellogg.
"What's won the day is the willingness of people to stand up for what's right -- to defend a cross that memorializes our war dead," he said. "It does not impose Christianity upon anyone."
(Paid for by Focus on the Family Action)
