Is President Obama's hostility to public expressions of religion so intense that he and his administration are willing to throw America's military veterans under the bus? We'll find out by March 12.
The Mount Soledad Veterans Memorial has stood in San Diego in one form or another since 1913. It began as an old wooden cross on a hilltop, and is now a 43-foot concrete cross surrounded by more than 2,000 personalized paving stones, each commemorating someone in the armed forces who gave their lives defending this country in wartime -- servicemen and women of all backgrounds and faiths.
At the base of the cross stands a large bronze plaque, declaring, "Mount Soledad Veterans Memorial Cross dedicated in 1954, as a tribute to all branches of the Armed Forces of U.S.A. servicemen and women."
But because the memorial contains a large cross, the far-left American Civil Liberties Union sued in 1989 to have it removed. It has been in litigation for 23 years.
With the support of the people of San Diego, in 2006 Congress took the extraordinary step of enacting a law to federalize the memorial. President George W. Bush signed this bipartisan law, which passed the House 349 to 72 and passed the Senate unanimously.
This law specifically declared the memorial "a tribute to the members of the United States Armed Forces who sacrificed their lives in the defense of the United States." Congress found that the memorial's "patriotic and inspirational symbolism" provides comfort to the families and comrades of those in uniform who made the ultimate sacrifice.
That statute started the current round of litigation. Although a federal judge in California upheld the memorial, the U.S. Court of Appeals for the 9th Circuit -- the most liberal of the federal appellate courts -- struck it down as an unconstitutional endorsement of religion.
All this, despite the fact that California Sens. Dianne Feinstein and Barbara Boxer -- both Jewish and both outspoken liberals -- support the memorial.
Mt. Soledad Memorial Association is a private party to the lawsuit. Represented by constitutional lawyers Allyson Ho at Morgan Lewis & Bockius and Kelly Shackelford at Liberty Institute, it has petitioned the Supreme Court to take this case and reverse the 9th Circuit, saving the century-old memorial and cross.
Since this is a national memorial, primary responsibility for defending it falls to the Department of Justice. Yet Obama's Supreme Court lawyer, Solicitor General Donald Verrilli, received an extension to file a petition until March 12.
Verrilli wrote to the court that the extension was needed because Eric Holder's Justice Department has not decided "whether this Court's review is warranted."
In other words, the Obama-Holder Justice Department cannot decide whether it is even worth asking the Supreme Court to save the Mt. Soledad Veterans Memorial. It might just be a waste of time.
Neither Obama nor Defense Secretary Leon Panetta -- who is a defendant in the case -- have publicly ordered or asked the Justice Department to take this case to the Supreme Court.
Congress should be outraged, banging on the office doors of Panetta, Holder, and even the president, demanding action. This level of disregard for America's veterans and hostility toward even the most common faith-related memorial display is unprecedented and astounding, especially given that the president cannot hope to win re-election if veterans oppose him.
Congress must demand that the Justice Department petition the Supreme Court to take this case. And they must call upon the White House and Pentagon to tell Holder to do his duty to protect this venerable memorial. America's veterans deserve it.
Examiner legal contributor Ken Klukowski is on the faculty at Liberty University School of Law and a senior fellow for religious liberty at the Family Research Council.