A war memorial cross in San Diego, California has sparked a constitutional battle. The Justice Department recently stated that the cross is not an unconstitutional promotion of Christianity and should remain on federal property.

Back in December, a federal judge upheld the 2011 ruling that the cross should be removed because it violates separation of church and state.

The cross has been on Mount Soledad since 1954 and was built to honor fallen soldiers from the Korean War, WWI and WWII. It’s one of at least four war memorial crosses under legal fire from civil liberties groups. Now, it’s fate could rest in the hands of the U.S. Supreme Court.

On Happening Now, criminal defense attorney Ashleigh Merchant said, “Unfortunately, the establishment clause does not have a grandfather clause. So just because it was done at the time […] it can’t really be grandfathered in.”

However, she argued that because it serves as a historical symbol rather than a religious one, it should be allowed to stay.

Read more on this developing story from FoxNews.com:

The Obama administration said an appeals court ruling declaring the cross on Mount Soledad a violation of the constitutional separation of church and state undermined an act of Congress and conflicted with recent Supreme Court decisions. 

But, in a filing Monday to the nation's highest court, it said an appeal should first be considered by the 9th U.S. Circuit Court of Appeals because there is no imminent risk that the cross is removed. Last month, the Mt. Soledad Memorial Association asked to skip the appeals court and go straight to the U.S. Supreme Court, saying it wanted to hasten resolution to a legal dispute that began in 1989.

The brief by Solicitor General Donald B. Verrilli Jr. said "additional time for reflection" may cause the 9th Circuit to reconsider its position. It says the Justice Department will appeal to the Supreme Court if it loses.

The 9th Circuit has been an unfriendly venue to advocates of the cross, ruling in 2011 that it was unconstitutional because it sits on federal property and sending the case back to U.S. District Judge Larry Burns to consider alternatives. In December, Burns reluctantly ordered that the cross be removed but said his order would be put on hold pending appeals.

"So long as the stay remains in place, this case can proceed along the usual procedural course without causing immediate harm to the public interest," the Justice Department wrote in its brief.

Verrilli added that the 9th Circuit’s earlier ruling was "wrong" and needs to be overturned, either by the appeals court or by the Supreme Court, according to The Los Angeles Times.

“The United States remains fully committed to preserving the Mount Soledad cross as an appropriate memorial to our nation’s veterans,” he wrote.

The concrete cross was erected in 1954 to the memory of veterans of World War I, World War II and the Korean War. The federal government seized the property from the city of San Diego in 2006 through an act of Congress in an effort to prevent it from being removed.

James McElroy, an attorney for plaintiffs who have challenged the cross, said the Justice Department made the right call by refusing to join the war memorial association's call for an immediate appeal to the Supreme Court.

"This is not a case where the cross is going to be ripped out of the ground anytime soon," McElroy said. "There's no reason to not go the normal course."