Court rules against ACLU, atheist on San Diego cross

Mt. Soledad cross near San Diego

In a major victory for backers of San Diego's Mt. Soledad cross, an appeals court ruled today in favor of a voter measure that authorized transfer of the land beneath the memorial to the federal government.

A panel of justices from the 4th District Court of Appeal ruled 3-0 that Proposition A was constitutional, overturning a decision by Superior Court Judge Patricia Yim Cowett that invalidated the measure. The court also reversed a $275,000 attorney fee award received by an ACLU-backed lawyer for plaintiff Phillip Paulsen, an atheist who died last month.

"We are quite pleased with the court's decision," said Charles LiMandri, the West Coast Regional Director for the Thomas More Law Center, which argued the case. "It protects the will of the people and their desire to preserve a historical, veterans memorial for future generations."

The battle began in 1989 when Paulsen filed suit, and a court ordered the city to remove the cross. 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.

Proposition A, passed by 75 percent in July 2005, called for the city to donate the cross to the federal government as the centerpiece of the veterans memorial.

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.

Paulson had argued against the validity of Proposition A, contending it violated the state constitutional ban on government aid or preference to religion.

But the justices today decided the voter initiative not an establishment of religion by San Diego voters.

"Given the language of Proposition A and the official ballot argument in favor of the proposition, we cannot conclude the individuals who voted for the proposition acted in order to establish the Christian religion or favor that religion," wrote Associate Justice Patricia Benke.

Jay Sekulow, chief counsel of the American Center for Law and Justice, which is defending the constitutionality of the cross, said the decision "clearly shows that the ballot proposition was proper."

"This decision represents another important legal victory in the ongoing battle to keep the Mt. Soledad Memorial in place," he said.

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