Fall 2006, Vol. 9, No. 2

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From the Editor:
The Pope Provokes

Muslims in America

As We Forgive Those...

Polygamy Returns

At Cross Purposes in San Diego

The Passion of the DUI

Maybe the Center Holds After All


At Cross Purposes in San Diego
Dorothy M. Thompson

Since 1913, there’s been a large cross standing atop Mt. Soledad, the highest point in San Diego, on land owned by the city. For what seems like almost that long, the cross has been a bone of contention involving seemingly endless waves of legal struggle over whether a 29-foot-tall Christian symbol should stand on public land. 

The Soledad cross has been under active litigation since 1989, and is now the focal point of a struggle that has pitted California’s hard line separationist state constitution against a trend in federal jurisprudence to loosen restrictions on religious symbols in public places. 

“How could this dispute have lasted for so long?” Al Knight wrote in a Denver Post column published on August 16. “The simple answer is that California has what is called a ‘no preference clause’ in its state constitution that guarantees ‘free exercise and enjoyment of religion without discrimination or preference.’” 

The Soledad cross, the third built on the site since 1913, began as an explicit symbol of Easter. Its current incarnation was erected in 1952 and dedicated as a war memorial in 1954—a designation that continues to muddy the constitutional waters today.

In 1989, a Vietnam veteran and atheist named Philip Paulson sued to have the Christian symbol removed from public land, and its supporters have responded with an elaborate sequence of strategies designed to avoid constitutional problems, including twice trying to sell the plot to a private veterans organization, adding new memorial walls at the base of the cross, and, finally, arranging for the federal government to take control of the parcel.

The federal government officially took ownership of the land on August 14, when President Bush signed a bill authorizing the Department of Defense to take the property as a war memorial. No one expected the move to end the battle over the cross; it simply shifted the fight to a new front.

Instead of determining whether the cross violates California’s constitution—something the courts have consistently found to be the case over the past 17 years—courts will now be asked to determine whether having a 29-foot Latin cross as the centerpiece of a public veterans memorial violates the federal constitution.

Cross supporters believe they will have a better chance of keeping the cross in place under federal guidelines, but opponents still believe they will win in the end. “The issue is still the same,” David Blair-Loy of the ACLU told the San Diego Union Tribune August 25. “We believe it is equally unconstitutional under state law, or federal law, for the government to subsidize, promote or endorse the Latin cross.”

The ACLU’s lawsuit challenging the cross, which was filed August 24, included among the plaintiffs a national Jewish War Veterans association and three San Diego residents: a Jewish Navy vet, his Muslim wife, and a local attorney. Regarding his own lawsuit, Paulson, who suffers from has terminal cancer, told the Union-Tribune September 1 that he knows the case has “defined his life” but he is not concerned that he will not likely live to see its conclusion.

“I’m not concerned about the end result. I’m more concerned about the trying. It’s all in the trying. I measure success based on my own efforts. People who know me know that Philip Paulson has perseverance, persistence, ceaseless determined energy. I never give up.”

Since he first challenged the cross in court 17 years ago, the city of San Diego has twice sold it and its surrounding land to the private Mt. Soledad Memorial Association. Both times, Paulson defeated the attempt to comply with court rulings while still keeping the cross in its current location.

When San Diego voters voted to transfer the land to the federal government in 2005, Paulson and his attorney challenged the election and won—a victory currently being reviewed by the Fourth US District Court of Appeals, despite the federal legislation that took control of the cross for the federal government.

His determination has been the bane of cross supporters’ existence. Union-Tribune columnist Joseph Perkins wrote in July 2004 that “Paulson, the atheist, will not rest, will not stop litigating, until he succeeds in removing the cross from the mountaintop.”

Over the years, the case has received little attention outside of San Diego. The Union-Tribune has tended to characterize it as the fight of a lone atheist against the will of the San Diegan people. The paper has also given the cross its outright backing, issuing a ballot recommendation July 26, 2005 that voters approve a Proposition A, which would have had the federal government take over the land.

Occasionally the paper’s editorial support of the cross has occasionally found its way to the news pages. For example, on Memorial Day this year, when it appeared the cross might soon be removed, the paper ran a story headlined “Removal of cross looms over ceremony honoring veterans.” 

The accompanying article, by staff writer Dani Dodge, opened with, “The Mount Soledad cross stood as a stoic witness to the pride and heroism remembered in a solemn Memorial Day service yesterday. Not even the white pigeons released at the end of the annual event soared above its 43-foot-high white pinnacle. “ 

A May 14 profile of Paulson’s attorney, James McElroy, focused on the volumes of hate mail the lawyer has received. In his article, Alex Roth penned this description of the financial side of the case: “In the past 10 years, he hasn’t charged his client a dime, but McElroy has billed the city hundreds of thousands of dollars under a legal provision that forces the losing side to pay the victor’s legal fees in certain constitutional disputes.”

The paper aside, the cross does appear to enjoy widespread support in San Diego.  Besides the private Mt. Soledad Memorial Association, which has maintained the cross since the 1950s, has over the years, it has also been supported by the City Council, local churches, and Christian activist groups such as the Thomas More Law Center. Gov. Arnold Schwarzenegger visited the cross August 15 and told the Union-Tribune, “I am very happy this Congress has intervened and has acted to protect this great war memorial.”

Outside town, California opinion is less favorable. “Whether viewed as a war memorial, an icon, or a place of worship, the cross is an extremely visible symbol of one religion,” the Los Angeles Times editorialized on July 15. “It is abundantly clear—from court proceedings, legal history, and to any passing motorist on I-5—that the cross on Mt. Soldad represents an unacceptable establishment of religion on public land.”

The Times also supported the central objection to selling the land on which the cross stands. San Diego’s “attempts to sell the land so a private group could keep the cross have not fooled the judges,” the editorial concluded. “The decision to sell just the tiny patch under the cross, and not to open the sale to the public at large but solely to groups that would retain the cross, amounts to preferential treatment.”

How long the Congress will be able to protect the cross remains uncertain.  McElroy remains optimistic that his side will win, telling the Los Angeles Times August 15 that the federal legislation represents cross supporters “last chance.” Rep. Duncan Hunter (R-CA), who authored the legislation, took the opposite point of view. “We’ve gone from a sure victory for the opponents to what is now a long shot for them.”

Other cross supporters have raised the specter of what removal of the cross will mean for other veteran’s memorials. “What’s next,” Rep. Brian Billbray  (R-CA) asked the Times, “Remove the crosses at Arlington or Normandy?” 

Cross opponents, such as McElroy, have made it clear that that is not their intention. It is the size and location of the Mt. Soledad Cross that, in their view, makes it unconstitutional. McElroy noted to the Times that while the plaques memorializing individual veterans cannot be seen from Interstate 5, “[a]t Mt. Soledad, the cross is all that people see from a distance.”

It appears likely that the Supreme Court will ultimately decide whether the cross violates the federal Constitution, and the high court may be involved in the state issue as well. In July, before the federal legislation passed, Justice Anthony Kennedy stayed a lower court’s order to remove the cross by August 1.  

In the past, the Supreme Court refused to hear the case, and pro-cross activists took the July ruling as a positive sign. One, Phil Thalmeier, told the Union-Tribune July 8 that the decision was“a strong indicator that no matter how the (federal appeals court) rules, the Supreme Court will take this case.”

The appeals court was expected to rule on the validity of Proposition A within 90 days of the October 18 arguments.


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