By Sharon Bernstein

(Reuters) – The U.S. Supreme Court has for the second time declined to take up the question of whether the cross atop a San Diego war memorial constitutes an illegal endorsement of religion by the federal government.

In an unusual statement Monday supporting the decision not to hear the case, Justice Samuel Alito said that because a lower court’s order to remove the massive cross atop a war memorial overlooking the city had been stayed pending appeal, there was no need for the high court to step in at this time.

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“The district court has issued an order requiring the memorial to be removed, but it has stayed that order pending appeal,” Alito wrote. “The court of appeals has not yet reviewed that order.”

The 43-foot structure has been the subject of litigation since 1989, when two veterans sued San Diego to get it off city land.

Erected in 1954 and later declared a national war memorial, it was located on the same spot where an earlier cross, once considered by some to be an indication that Jews were not welcome in the suburban community of La Jolla, was built in 1913.

In 2006, congressional intervention led to the purchase of the land by the federal government.

But the case continued, and in 2011 an appeals court ruled that the cross violated the constitutional ban on government endorsement of religion. In its ruling, the 9th U.S. Circuit Court of Appeals said a cross could be part of a war memorial, but not as currently configured.

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The cross was ordered taken down by a district judge last year.

The Liberty Institute, a Texas-based advocacy group that represented the Mt. Soledad Veterans Memorial Association in the case, had asked the U.S. Supreme Court to intervene.

“We will continue to fight for this veterans memorial and the selfless sacrifice and service of all the millions of veterans it represents,” Liberty Institute President Kelly Shackelford said in a statement. “It is the least we can do for those who gave so much to us all.”

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The American Civil Liberties Union had argued that the presence of the cross was unconstitutional for plaintiffs including the Jewish War Veterans of the United States of America.

“The government has no right or authority to decide whose religious symbols should be promoted and whose should be ignored,” the organization said on its website Monday.

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(Reporting by Sharon Bernstein; Editing by Doina Chiacu)

[Image via Nathan Rupert, Creative Commons licensed]