By BARBARA LEONARD
(CN) - The long-running debate over San Diego's Mount Soledad, which has been ruled unconstitutional and Christian-centric, will not go to the Supreme Court, the justices said Monday.
First erected in the La Jolla section of San Diego in 1913, the 43-foot cross has been an object of controversy, lawsuits and local initiatives for at least 20 years. The federal government took possession of the land in the late 1980s, and only then did it become a war memorial. The Jewish War Veterans of the United States, individual veterans and the American Civil Liberties Union filed the present action in 2006. U.S. District Judge Larry Burns in San Diego granted summary judgment to the government in 2008.
A three-judge panel of the 9th Circuit found in January 2011 that the mountaintop war memorial implies a preference for Christian soldiers, in violation of the U.S. Constitution's establishment clause.
The Pasadena panel did not specifically order removal of the cross, but it did find that its history - and La Jolla's documented history of anti-Semitism - belied Congress' assertion that the memorial, with the cross at its center, was primarily secular.
Though the federal appeals court sent the case back to Burns for an appropriate remedy, the memorial association and the federal government separately asked the Supreme Court to grant an interim appeal.
A majority of justices refused to take up the case Monday, with Justice Samuel Alito explaining that the case is still half baked.
"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..
Noting the court's recent decision on a highway memorial in Utah, Alito said that the "court's establishment clause jurisprudence is undoubtedly in need of clarity, and the constitutionality of the Mount Soledad Veterans Memorial is a question of substantial importance."
