Mt. Soledad cross and veterans memorial above San Diego (soledadmemorial.com)
After 15 years of adverse court rulings, the citizens of San Diego voted to save the city’s historic Mt. Soledad cross.
The conflict arises from an ACLU lawsuit challenging the constitutionality of the 29-foot concrete structure, which has been the center of a war memorial on city land since 1954.
According to an unofficial count, 75 percent of voters decided they want to transfer the city owned site to the federal government where it would be designated as a war memorial.
The Thomas More Law Center, a national public interest law firm, provided legal analysis that formed the basis for a federal law that declared the cross and memorial as a National War Memorial and authorized the federal government to receive a donation of the land.
A bill authorizing the federal government to take over the memorial was authored by Republican U.S. congressmen Duncan Hunter and Randy Cunningham. President Bush signed the bill into law in December.
The ballot initiative came about after the city refused to donate the cross and memorial to the federal government. A group called San Diegans for the Mount Soledad National War Memorial took just 23 days to gather 105,000 signatures.
“This is a tremendous victory in an important battle, but the war is not over,” said Richard Thompson, the center’s president and chief counsel. “The other side has not surrendered; court battles over the cross continue.”
Two court dates are scheduled within the next month. A federal judge will hear arguments over the cross Aug. 15, and a state superior court judge will hear arguments on the constitutionality of the ballot measure Aug. 12.
Joshua Gross, a spokesman for San Diegans for the Mount Soledad National War Memorial, believes the ballot result could influence the judges.
“A judge is always going to be inclined to follow the will of the people, the will of the voters,” Gross said. “The higher that number, the more inclined they’ll be. That’s just logical.”
But ACLU attorney James McElroy insists the vote is meaningless.
“It still doesn’t mean a damn thing,” he said, according to the San Diego Union-Tribune. “Voters should have never voted on it. It’s a waste of taxpayers’ money.”
The battle began in 1989 when Phillip Paulsen, an atheist, filed suit, and a court ordered the city to remove the cross. San Diego responded by placing the property up for sale, with the approval of 76 percent of voters. But the subsequent sale was ruled unconstitutional after Paulsen objected, arguing the sale had the effect of preserving the cross.
Paulsen argues that the cross is a violation of the First Amendment’s ban on government establishment of a religion
In 1998, the city sold the property to the Mt. Soledad War Memorial Association, which again was challenged in court. The sale originally was upheld but later ruled unconstitutional by the full panel of the 9th Circuit Court of Appeals in San Francisco and remanded back to district court to work out a remedy.
During its brief period of ownership, the Memorial Association made significant improvements, including extensive landscaping and the addition of more than 3,000 plaques honoring military veterans.