Friday, Sept. 1, 2006 | To some, Philip Paulson is a heroic defender of the law. To others, he’s a persecutor of religious freedom. Either way, on Sunday Paulson is expected to announce that he’s been diagnosed with terminal cancer, reminding everyone that he’s merely mortal.
For the past 17 years, Paulson, a Vietnam War veteran and an atheist, has served as the lead plaintiff in a legal quest to remove a 29-foot cross from government land atop Mount Soledad. Through his attorney, James McElroy, Paulson has successfully argued that the presence of a religious symbol on city land violates the California Constitution in a case that has been a centerpiece of civic debate for nearly two decades.
Still, the battle continues.
Last month, McElroy filed suit in federal court after Congress and President Bush transferred ownership of the cross and the war memorial to the federal government via eminent domain. The suit alleges that the transfer violates provisions of the U.S. Constitution that require the separation of church and state. While many believe the case will likely be heard by the Supreme Court, Paulson might never see the case resolved.
But Paulson’s failing health might not preclude him from securing a final legal victory, albeit a posthumous one. Legal experts, and those close to the cases, say that if Paulson passes away, it shouldn’t impact the legal standing of four related suits. However, some say it could affect the resolve behind those efforts.
Paulson, who typically avoids media coverage, declined to comment for this story other than to confirm that he has been diagnosed with terminal cancer. He has kept out of the limelight throughout the history of the case. McElroy, the public face of the legal challenge, also declined to comment.
But David Steinberg, a professor at the Thomas Jefferson School of Law who’s followed the cross saga closely, said he doesn’t believe that Paulson’s passing would hurt the standing of the challenges to the federal transfer.
Steinberg said the presence of Steve Trunk, a plaintiff recently added in McElroy’s case, and the filing of a similar suit by the ACLU mean that the challenge will move forward with or without Paulson.
Shortly after the transfer took place, the American Civil Liberties Union filed its own case challenging the presence of the cross on federal land. That case is expected to be consolidated with McElroy’s and heard by a federal judge later this month.
Glenn Smith, a law professor at California Western School of Law who has also watched the cases closely, said he agrees with Steinberg.
“With the ACLU interested in the case and the longstanding commitment of the attorney, Mr. McElroy, I would think that it would be seen as sufficient reason to continue,” Smith said.
Two other cases, currently in legal limbo, could be impacted by Paulson’s potential passing, but the possible consequences are less clear.
The first case stems from the city’s appeal of an ultimatum issued earlier this year by a federal judge who ordered the city to remove the cross by Aug. 1 or face a daily fine.
The ultimatum came 15 years after the same judge found the cross to be unconstitutional and ordered its removal from city land. The order has since been postponed by the Supreme Court pending a review by the Ninth Circuit Court of Appeals.
The second case is related to the city’s pending appeal of a state judge’s ruling that Proposition A, a successful 2005 ballot initiative that would have given the cross and the memorial to the federal government, was unconstitutional.
If a federal judge in McElroy’s latest case rules the transfer of the cross is constitutional, the two appeals will be moot. If the transfer is found to violate the U.S. Constitution, the cases could again become relevant.
Steinberg and Smith said Paulson’s death shouldn’t significantly impact the appeals but some procedural aspects remain vague.
Because judges have already ruled in both cases, neither expert was able to say whether the appeals would simply move forward without Paulson or whether McElroy would need to substitute a new plaintiff.
“If in a significant constitutional case you have a plaintiff who is unable to prosecute a case – even if they don’t want to do it anymore – it typically won’t be hard to substitute a plaintiff,” Steinberg said.
Finding that substitute shouldn’t be hard. The ACLU named three San Diego citizens with similar concerns in its suit.
“Certainly the claim brought by Mr. Paulson isn’t unique to him and could be asserted by many citizens of San Diego who are concerned about separations of church and state,” Smith said.
Even some of those who have faced off against Paulson and McElroy over the years said they doubt Paulson’s passing could derail the litigation.
“There will be somebody else to stand in Mr. Paulson’s place if necessary,” said Charles Berwanger, the attorney for the Mount Soledad Memorial Association, the group that built and maintains the war memorial and is in favor of keeping the cross.
Told of Paulson’s illness, Phil Thalheimer, chairman of San Diegans for the Mount Soledad National War Memorial, a group that supports keeping the cross, said his sympathies go out to the Paulson family. However, he said he doesn’t think Paulson has played a significant role in the legal cases or the public debate over the cross.
“I don’t think he was the power behind it to begin with,” Thalheimer said. “I think he was just a name.”
Regardless of Paulson’s involvement, it’s not uncommon for complicated cases to outlast plaintiffs, Smith said.
“This is typical of public law cases where, although there has to be an individual plaintiff, what’s really on trial is a set of principles,” Smith said. He added that the larger battle over the appropriate intersection of government and religion will likely outlast us all.
“We are going to have these controversies as long as we have a constitution.”
Whether Paulson’s passing would sap the resolve of McElroy and other cross opponents remains to be seen.
“Over the years Mr. Paulson has clearly been a leader in the fight against the cross – this is something he feels strongly about and is adamantly opposed to,” Steinberg said. “How much more time, money and energy do other people want to invest in fighting the cross?”
Yet some may draw inspiration from the memory of a fallen friend or client.
“If it were me and I had been fighting for 17 years on behalf of a plaintiff,” Smith said, “his death, if anything, would embolden me more to see his case to the end.”