Justice Alito: Mt. Soledad Cross Case ‘Not Yet Ripe’ for Supreme Court to Review

By Pete Winn | June 25, 2012 | 3:04pm EDT

Mt. Soledad War Memorial. (Photo courtesy of the Liberty Institute)

(CNSNews.com) - The U.S. Supreme Court on Monday declined to review a Ninth Circuit decision that has placed the 29-foot cross on a San Diego war memorial in jeopardy.

But Justice Samuel Alito says the Court may be persuaded to take the case at a later time.

In January of 2011, the U.S. Circuit Court of Appeals for the Ninth Circuit held that  “the Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause” and was therefore unconstitutional.

However, the 9th Circuit left the door open for other legal “alternatives” to be found that would not necessarily mean the cross, which is on federal land, would have to be removed.

Justice Alito, who issued an unusual statement Monday to accompany the Supreme Court’s refusal to take up consideration of the Ninth Circuit decision, said the appeal was premature, and that the nation’s highest court may reconsider this case after the district court judge issues a final order determining the fate of the memorial.

“Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will be required to take, I agree with the Court’s decision to deny the petitions for certiorari,” Alito wrote, adding that the case is “not yet ripe for review by this Court.”

The American Civil Liberties Union praised the Supreme Court for refusing to take the case.

"In this case the government has no business playing favorites with religion, thus the Supreme Court decided properly to stay out of it," David Loy, of the American Civil Liberties Union in San Diego Countyhe said.

But Allyson Ho, lead attorney for the Mt. Soledad Memorial Association, which maintains the memorial, said the refusal was disappointing.

“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,” Ho said

Kelly Shackelford, president of the Liberty Institute and co-counsel for the Mt. Soledad Memorial Association, said the lower court could take a long time to issue a decision.

“We are hopeful in light of Justice Alito's statement and remain committed to defending this memorial through the many legal battles yet to come,” Shackelford said.

Shackelford said the Mt. Soledad cross is just one of many veterans' memorials across the country “under assault by the ACLU, atheist groups and their supporters.”

In 2009, representing the Veterans of Foreign Wars (VFW) of the United States, The American Legion, the Military Order of the Purple Heart, American Ex-Prisoners of War and other veterans organizations, Shackelford filed suit to help save the Latin Cross atop the Mojave Desert Veterans Memorial, a World War I memorial in the Mojave National Preserve in California.

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