Last week the U.S. Supreme Court said no to hearing an appeal regarding the Mount Soledad cross. This is the 12th time in 15 tries the cross has lost in court since the case began in 1989.

Nonetheless, the Mount Soledad Memorial Association said they will continue fighting. Their cross is going to stand “as it is where it is” as their slogan goes.

But if they lived up to their better reputation, these retired senior officers of our armed forces would see the best response is not more fighting but resolving the case. In fact, in light of the opening they were given by the 9th Circuit Court of Appeals in 2011, the question they should be asking is not how to continue the fight but how to regain control of their memorial and capitalize on the offer before them.

The fact is that contrary to the editorializing of U-T San Diego and rhetoric of some local congressmen, the 2011 decision, the one the Supreme Court just refused to review, does not say the cross must come down. It says just the opposite:

“[The finding that the Memorial violates the Establishment Clause] 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.”

Simply put, the association can win their battle by remaking the memorial so it does not primarily convey a government endorsement of religion; but it can include a cross. They simply need a new design; one that contextually foregrounds the authority of the state and backgrounds the power of religion. This is not unlike what is conveyed by a national military cemetery.

The problem is, those operating the memorial won’t consider modifying it. Their power and prestige is invested in preserving the past and their loyalties to it are too great to break. They see modification as admitting defeat and, like military men everywhere, they believe victory means vanquishing the enemy. This will be quite a feat. Their enemy is all Americans who believe in the separation of church and state.

Now, they are joined at the hip with religiously charged legal counselors, who are fighting a perpetual war. Their strategy is to continuously produce legal arguments that purposely prolong the case. Their premise is the longer the case goes, the longer the cross stands.

But everyone plainly sees what’s going on. The cross is a cross. Its outsized presence dominates the memorial and becomes, by default, its central theme. No matter how hard the association works to mask its context, every audience knows its appearance honors and advertises the religious beliefs it was meant to represent when first installed in 1954.

The association is waging a fruitless (and expensive) war against its neighbors, taxpayers, countrymen and the precepts of the Constitution its officers once swore an oath to preserve. Their energy needs to be redirected towards something positive. It’s time some leading San Diegans intervene and help these implacable warriors progress.

One place to start is showing them that just as the military puts a premium on respect, so does the real world. Except that it in the real world, respect comes from engaging with others in negotiation and compromise, not by resisting it.

Another is helping them overcome their fear of defeat. This will require illustrating that victory comes from redesigning and remaking their memorial — for which architects, builders and money can be found.

The Memorial Association needs to learn that action brings more respect and recognition than reaction, and when their new memorial is unveiled and draws accolades to San Diego, their action will mean even greater power, prestige and loyalty. Who knows, one day their efforts may become known as an act of charity, which is hardly the case today.

Bob Stein lives in University City.

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