High atop San Diego sits one of the city’s most notorious symbols and its most enduring source of controversy.
For the last 17 years, the Mount Soledad Cross has been the focal point of what one judge recently called a “long and torturous legal history.” It’s a saga that centers on the separation between church and state and the question of whether the presence of the 29-foot Latin Cross on government property violates that division. So far, federal and state courts have said that it does, but the struggle continues.
San Diego’s longest running battle is currently being waged on three fronts, with state and federal appeals courts set to rule on previous decisions in the coming weeks. A federal judge is also set to rule on the recent transfer of the cross from the city to the federal government. Regardless of the outcome of those cases, the fate of the cross seems likely to be decided by the U.S. Supreme Court, and its decision could set a precedent for similar disputes involving religious symbols across the nation.
A cross, in one form or another, has topped Mount Soledad since 1913, but the current concrete incarnation of the religious symbol was erected on city parkland in 1954. It stood there unchallenged for some 35 years until Philip Paulson, an atheist and Vietnam War veteran, filed the first legal salvo in 1989.
Paulson originally filed the case without the aid of a lawyer. Paulson argued that having a cross on public property violates a provision of the California constitution that prohibits government from showing preference for one religion over another. But proponents of the cross said it was a secular war memorial, not a religious symbol. In 1991, U.S. District Court Judge Gordon Thompson Jr. sided with Paulson and ordered the city to remove the cross.
But rather than relocate the cross, city officials unsuccessfully sought three times to change the status of the symbol and the land on which it is perched.
Twice the city has attempted to sell the cross and surrounding land to the Mount Soledad Memorial Association, a nonprofit group that began constructing the memorial that surround the cross in 1999. But the courts invalidated both of those transactions, ruling that they were designed to preserve the cross and therefore unlawful attempts to aid religion under the state constitution. The city appealed both rulings all the way to the U.S. Supreme Court, which declined to hear the cases.
A third proposed sale was rejected by voters as Proposition K in 2004. Days later, Reps. Duncan Hunter and Randy “Duke” Cunningham inserted a provision into unrelated federal legislation calling for the establishment of a national veterans memorial atop Mount Soledad. The bill set the stage for the federal government to accept the city’s yet-to-be-extended offer to donate the memorial and the cross.
Facing public backlash after initially declining to donate the cross, the City Council reversed itself and passed the decision on to the voters, who approved the gift as Proposition A in July of 2005.
But Paulson challenged the transfer and a judge once again ruled in his favor. This time it was Superior Court Judge Patricia Yim Cowett, who found that the city’s gift amounted to an aid to religion, which violated the state constitution. Cowett nullified Proposition A.
In May, Judge Thompson, who ruled in favor of Paulson 15 years earlier, issued an ultimatum to the city: either comply with his initial order and remove the cross from public land within 90 days or face a $5,000 daily fine. That got the attention of officials in a cash strapped city.
Mayor Jerry Sanders and Hunter appealed to President Bush for a last-minute intervention – asking him to condemn the property and make it a federal park. In the meantime, the City Council voted to appeal Thompson’s ultimatum and Cowett’s ruling.
With the fate of the cross in limbo, national veterans and religious groups joined the fray and San Diego’s cross controversy gained national attention. But cross supporters were dealt a setback in June, when the 9th District Court of Appeals declined to postpone Thompson’s ultimatum. While the city made a final appeal to the Supreme Court, its police department started making arrangements to deal with people who promised to chain themselves to the cross to prevent it from being removed.
A week later, Hunter introduced legislation seeking to transfer the cross to the Defense Department. As the bill worked its way through Congress and Thompson’s 90-day clock ticked away, the unexpected happened.
In early July, Supreme Court Justice Anthony M. Kennedy granted the city’s request to stay Thompson’s ultimatum, giving the city more time to pursue its appeals of Thompson and Cowett’s rulings. Kennedy also indicated that the nation’s highest court would consider hearing the case.
Cross proponents received more good news the following month when Bush signed Hunter’s legislation into law, effectively transferring the cross and surrounding memorial to the federal government.
Before Bush even signed the bill into law, Paulson filed a legal objection to the transfer. Paulson argued that the transfer violates the state constitution as well as the Establishment Clause of the U.S. Constitution, which states that “Congress shall make no law respecting an establishment of religion.” The American Civil Liberties Union has also opposed the transfer, filing a case on behalf of a national Jewish veterans group and several local citizens. Those cases have been combined and are set to go to trial before U.S. District Court Judge Barry Ted Moskowitz in the coming months.
The transfer amounts to a major victory for cross supporters, who believe that with the cross in federal jurisdiction it will no longer be subject to prior rulings based on the strictly interpreted California constitution. They’re hoping that the Supreme Court, with its two new conservative justices, will hear the case and rule in their favor under the more malleable provisions of the U.S. Constitution.