For decades, there has been a First Amendment battle raging over the Mount Soledad Veterans Memorial in La Jolla, Calif., where a large cross anchors a tribute to Korean War veterans.
Because it sits on public property, the American Civil Liberties Union has long argued that the cross amounts to an unconstitutional entanglement of government and religion.
In 2011, the 9th Circuit Court of Appeals agreed, triggering an appeal to the U.S. Supreme Court, but in June, the high court justices declined to hear the case.
Oddly, the 9th Circuit, while ruling the cross illegal, didn't order it removed. The parties were left to begin negotiations about what to do with it. "We're going to go back and talk to the district court and talk to the government, and we will work at arriving at an appropriate remedy," ACLU attorney David Loy said at the time.
But just days ago, attorneys for the Mount Soledad Memorial Association learned that the ACLU has been negotiating with the Department of Justice without including the group that actually maintains the cross and memorial site. That sparked concern on Capitol Hill.
Rep. Duncan Hunter, R-Calif., a veteran himself, notes that there is a federal law in place protecting the memorial. Hunter worries that rather than fighting to uphold the law, the Justice Department may be negotiating away the protections outlined in the law.
"If the DOJ is not going to enforce congressional law, they're going to go off on their own in what appears to be lockstep with the ACLU. That puts the cross in danger," he said.
Hunter, along with fellow California Republican Rep. Brian Bilbray, sent a letter to Attorney General Eric Holder requesting more information about the negotiations and demanding that the Memorial Association be included in future talks. The lawmakers also requested an immediate meeting with Justice officials, but Hunter says that was refused.
On Thursday, a federal judge is scheduled to hold a hearing involving the parties, and now it appears that hearing will be focused on the issue of negotiations and which organizations must be included in talks about what to do with the cross.
Attorneys for the Memorial Association say they will take the opportunity to lodge serious objections to the “secret negotiations” between the ACLU and Justice Department and will not agree to any resolution that involves taking the cross down from its current spot.