(CNSNews.com) - The Obama administration, under fire from Christian conservatives because of the Obamacare contraception mandate, has decided to defend the Mt. Soledad War Memorial, which includes a 29-foot Christian cross.
The Justice Department on Wednesday filed legal briefs asking the U.S. Supreme Court to overturn a decision by the Ninth Circuit Court of Appeals, which ruled in 2011 that the San Diego-area memorial was unconstitutional because it includes a commemorative cross.
In its petition to the Court, which was filed by Solicitor General Donald Verrilli, the government did not argue specifically that the cross belongs on the monument, but only that the appeals court had wrongly determined that the presence of the cross was inconsistent with the Establishment Clause.
“The decision below, if permitted to stand, calls for the government to tear down a memorial cross that has stood for 58 years as a tribute to fallen service members,” the government wrote.
“Nothing in the Establishment Clause compels that result, because the Establishment Clause does not require eradication of all religious symbols in the public realm," said the Justice Department.
The government is being joined by 34 members of Congress, who in a separate legal brief filed Wednesday, also asked the Supreme Court to overturn the decision, which they say is flawed.
“It's vitally important that the high court not only take this case but overturn a troubling decision that not only strikes at the heart of honoring our military veterans, but a decision that is legally flawed,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, which is representing the 34 members of Congress, including Rep. Randy Forbes (R-Va.), who heads up the Congressional Prayer Caucus, and Reps. Brian Bilbray (R-Calif.) and Duncan Hunter (R-Calif.), who represent the San Diego area.
The congressmen argue that the appeals court erred when it failed to recognize what the Supreme Court had concluded in earlier cases -- that “a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people.”
Kelly Shackelford, president of the Texas-based Liberty Institute, which is defending the cross and the memorial, applauded the Justice Department for choosing to defend the memorial.
“The U.S. government decided to do the right thing and fight alongside the veterans in honoring the selfless sacrifice and service of the millions of veterans who courageously stood for the United States of America,” Shackelford said in a statement.
“Today, we are one step closer to our goal of having the Supreme Court ending this travesty for good – for the sake of all veterans and their memorials nationwide.”
In October, the full Ninth Circuit declined to review a decision by a three-judge appeals court panel last January declaring the San Diego monument unconstitutional. The case was brought by the American Civil Liberties Union on behalf of the organization, Jewish War Veterans of the United States of America. Neither returned phone calls from CNSNews.com before press time.
The appeals court said the government must remove the 29 ft. cross, which is surrounded by six walls covered with more than 3,000 personalized plaques comemorating veterans.
“(W)e conclude that the Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause,” wrote Judge M. Margaret McKeown on behalf of the panel.
“This result does not mean that the Memorial 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."
But according to the American Civil Rights Union, a conservative legal group, barring a Christian cross from being at the center of a war memorial or in a national cemetery is not what the Founders meant when they forbade the federal government from “establishing” a religion.
In a separate “friend of the court brief” also filed Wednesday, ACRU General Counsel Peter Ferrara argued that public religious expression does not violate the Constitution’s prohibition against establishment of religion unless it involves coercion.
“At the time the First Amendment was adopted, the countries of Europe all had ‘Establishments of Religion,’ which meant official government religions enforced by laws requiring attendance at the official church, regular contributions to it, and other preferences in law for members of that church,” Ferrara said.
“These establishment policies all involved government coercion to force citizens to support the one favored church. Almost all of the American colonies had such establishments as well, with legal compulsion or coercion as their hallmark.
“These practices, and anything like them involving coercion in regard to religion, are what the framers meant to prohibit in adopting the Establishment Clause, for this is what an Establishment of Religion meant at the time.
“They did not mean, however, to prohibit any voluntary, public, religious speech, or religious expression or symbolism, which do not involve any such coercion,” Ferrara added.
The Supreme Court has not yet decided whether it will take the case.