History Of Soledad Cross Controversy

INTRODUCTION

This website is written by Al Rodbell, a resident of Encintas California.  . Paragraph 31, of the recent ACLU brief  describes the agreement among all parties including the Soledad Cross Memorial Association to move the cross to the church down the hill, and create a new constitutionally acceptable symbol in its place. This was confirmed to me by the CEO Bill Kellogg, that this decision taken shortly before it was submitted to the city council on July 20, 2004, was by a unanimous vote of the executive board.  This agreement will be substantially reinstated as of April 2012, if the Supreme Court does not take up the pending recent decision.

As of March 2012 the decision to grant certiorari by the S.C. is pending.  Based on a law passed in 2006, if the

FACTUAL BACKGROUND
Description and History of the Mt. Soledad Latin Cross

Note: This essay has been condensed making use of material from this ACLU court document which contains further details and citations to relevant cases referenced here.

The Mt. Soledad Latin Cross, a structure measuring 43 feet in height with a 12-foot arm spread, is located on now-federal property at the top of Mt. Soledad in San Diego, California.  The City of San Diego  first took possession of Mt. Soledad in the nineteenth century.  In 1916, the San Diego City Council dedicated the property on which the Latin cross rests, as well as 170 adjoining acres of property, as the Mt. Soledad Nature Park. Between 1913 and 1934, several crosses were erected atop Mt. Soledad.  The area was undeveloped,  close to being wilderness, so details are not clear of these events.

In 1952, the City Council authorized a private entity, the Mt. Soledad Memorial Association (“MSMA”), to erect and maintain a sizable Latin cross on top of Mt. Soledad where the previous, now gone, crosses were . The MSMA constructed the Cross, consisting of reinforced concrete  between 1952 and 1954.

On April 18, 1954, the MSMA dedicated the Latin cross during a Christian religious ceremony held on Easter Sunday. During that ceremony, the Latin cross was explicitly dedicated to “Our Lord and Savior Jesus Christ” in an MSMA dedication bulletin.  Since the Latin cross’s initial dedication in 1954, the City of San Diego has granted the MSMA a permit each year to conduct a sunrise service on Easter morning for Christians to celebrate the resurrection of Jesus Christ.


In 1989, a private individual, an Viet Nam combat vereran, and self described atheist, Philip K. Paulson, sued the City in this Court over the Latin cross’s presence on top of Mt. Soledad, based on the “No Preference” Clause of the California Constitution,  and the first amendment Establishment Clause of the United States Constitution.  The Federal District Court found that “[w]here . . . the Latin cross appears as a permanent, salient symbol on public property and on a public imprimatur, California’s constitution will not permit it to continue to stand." and gave the City three months to remove the cross.

On appeal, the Ninth Circuit upheld the district court’s determination and concluded that, even assuming the Mt. Soledad Latin cross could properly be characterized as war memorial, it is “a sectarian war memorial that carries an inherently religious message and creates an appearance of honoring only those servicemen of that particular religion.”

In October 1994, following this Court’s decision and the Ninth Circuit’s affirmation of that decision, the City made its first attempt to remedy the constitutional violation via a ballot initiative in which it urged voters to “SAVE THE CROSS ON MOUNT SOLEDAD,” by authorizing a no-bid sale of a 222-square foot parcel of land under the Latin cross to the MSMA.  (Proposition F of 1995)  This Court (Federal district court) subsequently declared the sale invalid under the No Preference Clause of the California Constitution,   Following this decision, the Association MSMA, sold the 222 square foot parcel back to the City.

The City did not give up.

After this decision, the City published a notice soliciting bids on about a half-acre of land in Mt. Soledad Park, and expressly stated that the sale of the parcel was “for the purpose of maintaining a historic war memorial.” To this end, the City established a bidding process that required applicants to explain their plans for “maint[aining] a historic war memorial on the site.” Subsequently, the City announced that it accepted the MSMA’s bid as the winning bid. The Ninth Circuit, sitting en banc, invalidated this sale as well.

The Court further implored the parties to “settle this case! It’s time to move the cross from public land to private land and comply with the laws of our great country instead of trying to find sneaky ways to get around them to pander to a certain group or to satisfy an out-of-state group’s religious agenda.”

The parties engaged in extensive settlement discussions over the course of several weeks and agreed to settle the case by moving the Latin cross 1,000 yards to a nearby church. Under the terms of the settlement, the MSMA would be allowed to maintain an interest in the Mt. Soledad property and war memorial, and the Latin cross would be replaced with a nonsectarian symbol that would appropriately recognize all veterans in exchange for an end to litigation. The settlement terms were presented to the City Council on July 20 and 27, 2004.

I happened to have had an extensive conversation with the CEO of Mount Soledad Memorial Association, , MSMA  and when I asked if the members voted on the above resolution, he said that the executive board voted unanimously to approve it.  He then went on to say that it was the local churches and politicians who fought the deal and not the members.  

But instead of accepting the settlement outright, the Council attempted one last sale to the highest bidder, who alone could decide whether to keep, remove, or replace the Latin cross. At the public meeting of the City Council, the Mayor and four of five Council members, who voted to put the proposition (known as Proposition K) on the ballot over strong MSMA and prominent veterans-group opposition, expressly stated that the reason for their vote was to allow the Latin cross to remain on Mt. Soledad.  One Councilmember even cited his membership in the “Jesus Christ fan club” as a reason for his vote. Id. at 27.

On November 2, 2004, a substantial majority of San Diego voters — over 250,000 in
total — rejected Proposition K and directed the City Attorney to enter into the settlement agreement.

Overriding of the Settlement and the Intervention of (former) Congressman
Randy “Duke” Cunningham to “Save the Cross”

Undeterred by the will of San Diego voters and this Court’s prior exhortation to
settle the case consistently with constitutional requirements, the City refused to comply with the binding ordinance. Instead, with the active encouragement of the Thomas More Law Center (“TMLC”), an advocacy group whose stated mission is the “promotion of the religious freedoms of Christians” and the protection of “Christians and their beliefs in the public square,” the City began its ongoing campaign to circumvent its constitutional obligations.

34. After San Diego voters overwhelmingly rejected Proposition K, the TMLC sought to
scuttle the binding settlement agreement and secure the intervention of the federal government— all to save the Latin cross as a religious symbol.  On November 10, 2004, the TMLC sent a letter to Representative Randy “Duke” Cunningham, a Congressman from San Diego and a member of the powerful House
Appropriations Committee, to solicit his help in convincing the federal government to override the San Diego referendum and corresponding settlement agreement by declaring the Latin cross a national war memorial. In so doing, the TMLC made clear that the principal reason for taking such action was because “religion and morality are the foundation of our country” and the Mt. Soledad Latin cross was “one of the most visible symbols of [our Christian faith].”

Acknowledging that there was “unfortunately” a local initiative whereby San Diego
voters overwhelmingly agreed to resolve the matter by entering into a settlement agreement, the TMLC nonetheless asserted that “the culture war will continue to be fought on many fronts” no matter what. Accordingly, the TMLC asked Representative Cunningham to “save the Cross” and help “preserve this … religious landmark” by declaring it a national war memorial.

Less than a month later, during the night of November 21, 2004, Representative Cunningham inserted an eleventh-hour rider into the voluminous $388 billion Fiscal Year 2005 Omnibus Appropriations Act (Pub. L. No. 108-447). The rider, which few had seen before Representative Cunningham inserted it into the appropriations bill, (1) designated the Mt. Soledad Veterans Memorial a national veterans memorial; (2) authorized the Department of the Interior to accept the donation of the Memorial from the City of San Diego; and (3) directed the National Park Service to enter into a memorandum of understanding with the MSMA for the maintenance and administration of the memorial. Pub. L. No. 108-447, § 116, 118 Stat. 3346, codified at 16 U.S.C. § 431 note (2004). Representative Cunningham acknowledged that he had not asked for a written legal opinion from an attorney on whether the bill would allow the Latin cross to remain at its current location, and that he was trying to “save the Cross” as a religious landmark.

The TMLC hailed Cunningham’s effort as “an act of God.”

With the exception of the TMLC, however, all parties to the long-running dispute
acknowledged that Representative Cunningham’s proposed legislation would not solve the constitutional problem that the California state and federal courts had unanimously reaffirmed multiple times over the preceding 13 years. The press has reported that William Kellogg, Executive Director of the Mount Soledad Memorial Association, candidly acknowledged that he did not see how Cunningham’s legislation would solve the underlying constitutional impediments. Likewise, the press reported that the MSMA’s attorney, Charles Berwanger, said that officials of the U.S. Department of Veterans Affairs had advised him that such a move would run afoul of the First Amendment and had reaffirmed that opinion in the wake of Rep. Cunningham’s rider.

On December 8, 2004, President Bush signed the omnibus appropriation bill, with
Representative Cunningham’s rider intact, into law. Soon thereafter, the TMLC and
Representative Cunningham successfully pressed San Diego Mayor Dick Murphy to add the proposed federalization of the Latin cross by way of donation promptly to the City Council Agenda.

Prior to the City Council meeting, however, San Diego City Attorney Michael
Aguirre issued a formal legal opinion that the federalization of the Latin cross by way of donation would be a violation of the California Constitution and fall far short of a remedy that would be deemed acceptable by the California state and federal courts. Mr. Aguirre’s opinion further observed that, “based on current case law, such a transaction would also violate the federal Constitution and . . . provide fodder for additional legal proceedings against the City.”

On March 8, 2005, after a six-hour public hearing, the San Diego City Council voted against donating the Latin cross to the federal government based on the MSMA’s request, City Attorney Aguirre’s legal recommendation, and the recognition that the City had a binding obligation to enter into the MSMA settlement agreement once Proposition K failed.

In a subsequent letter to the editor of the San Diego Union-Tribune, MSMA President Bill Kellogg reiterated his “strong support” for the City Council’s decision to reject federalization of the Cross, saying he was “convinced it was the right decision for our community and for our veterans.” Mr. Kellogg stated  that the constitutional issue had already been litigated to the fullest extent possible,” that the Ninth Circuit’s decision .... in which the Ninth Circuit invalidated a nearly identical attempt arising out of a war memorial in the Mojave Desert Preserve, “was directly on point,” and that “only the patience of the courts has prevented the [original] order from being carried out.”

To those who “supported the federalization of the park [who] say they don’t care about the cross itself; they care about ‘not caving in to a minority,’” Kellogg contrasted the MSMA’s deep commitment to “the cross and the walls” and its equal commitment “to ensuring that both remain standing in a public place where they can be enjoyed by all.” “Only by moving the cross to another location” pursuant to the original MSMA settlement agreement, Kellogg argued, could the Cross truly “be saved.”

Right wing groups and local congressman launch major campaign

Soon after the City Council’s decision, the TMLC and others, spurred on by Rep. Cunningham and Mayor Murphy, spearheaded a petition and referendum drive under the aegis ofa TMLC-affiliated group called “San Diegans for the Mt. Soledad National War Memorial” to rescind the Council vote. This wide-ranging and well-financed effort included 75 paid signature gatherers, massive fundraising efforts, and a petition written by the TMLC that began with the proposition, “You Can Save Our Cross.” Press reports described sermons from the Latin cross site and other public and religious venues, including events at Qualcomm Stadium and Cox Arena on Easter Sunday, that urged civil disobedience to flout the original Court order and save
the Latin cross.

At a May 17, 2005 meeting to consider the petition, two City Council members, while
expressing misgivings about the mounting legal costs the City was incurring, agreed to switch their initial vote and to send the issue back to the voters. The Council accordingly voted 6-3 to allow a public referendum, Proposition A, on the Latin cross. The vote on Proposition A was scheduled to coincide with the July 26, 2005 special election the City Council’s vote was announced, Latin cross supporters sang “Onward Christian Soldiers” in the Council chamber.


Further Litigation Over the Latin cross

A private individual then challenged the proposed referendum on donating the Latin
cross to the federal government on the grounds that the donation would violate article I, section IV (the No Preference Clause) and article XVI, section V (the No Aid Clause) of the California Constitution. Soon after Proposition A passed, California Superior Court Judge Patricia Cowett issued a temporary restraining order preventing the donation and a tentative ruling that any such donation would be unconstitutional. Following Judge Cowett’s order, City Attorney Aguirre reportedly reiterated that Proposition A was “clearly unconstitutional.”

The City of San Diego Joins forces with the Thomas More Legal Center, A Christian Domination Organization

Seeking to overcome its inability to continue to bankroll the Latin cross litigation —which to that point had been ongoing for 13 years — the City deputized the TMLC’s lead attorney, Charles LiMandri, as a special deputy city attorney who agreed to work for free. On October 7, 2005, Judge Cowett issued a 35-page final decision striking down Proposition A as unconstitutional.

On May 4, 2006, this Federal District Court ordered the City of San Diego finally to remove the Latin cross within 90 days or be fined $5,000 a day. In response to the Court’s order, San Diego City Attorney Aguirre once again recommended that city officials stop politicizing the issue and incurring unnecessary legal costs in a futile effort to save the Latin cross on appeal.

MSMA President William Kellogg likewise reiterated that the private war memorial organization was prepared to move the Latin cross to nearby private property and replaced at the memorial with another fitting symbol for veterans of the Korean War: “We feel it’s very important that the cross be saved. The location of the cross is not the primary issue.” The City sought a stay of Judge Thompson’s order pending appeal. On June 21, 2006, the Ninth Circuit denied the stay request.

A Single Supreme Court Justice, Anthony Kennedy, prevented constitutional resolution of this controversy, and legitimized further action by congress

July 7, 2006, Justice Kennedy, as the Circuit Justice for the Ninth Circuit, granted a stay to preserve the status quo pending the respective appeals of Judge Thompson’s and Judge Cowett’s decisions.

Recent Federal Intervention

At the same time that Justice Kennedy was intervening, Mayor Sanders and certain organizations lobbied the President and Congress to help the evade the edict of the California Constitution by condemning and effectuating a taking of the Mt. Soledad Latin cross by the federal government. On May 10, 2006, Congressman Duncan Hunter, who assumed leadership on the Latin cross issue in Congress after Rep. Cunningham’s departure, asked the President to “use the authority found in 40 U.S.C. 3113 to begin immediate condemnation proceedings” concerning the Latin cross.

On June 27, 2006, Rep. Hunter introduced H.R. 5683. Stating an intent to “effectuate the purpose” of Rep. Cunningham’s previous bill from 2004, H.R. 5683 declares that “there is hereby vested in the United States all right, title, and interest in and to, and the right to immediate possession of, the Mt. Soledad Veterans Memorial in San Diego, California.”  The bill states that upon acquisition of the memorial by the United States, “the Secretary of Defense shall manage the property and shall enter into a memorandum of understanding with the Mt. Soledad Memorial Association for the continued maintenance of the Mt. Soledad Veterans Memorial by the Association.”

The bill passed the House on July 19, 2006 by a vote of 349 to 74, with all nays being Democrats. It was then submitted to the Senate the next day, with the Democratic side objecting to it being passed by unanimous consent.   Finally after speeches by Senator Jeff Sessions, and John McCain, castigating both the ACLU and the Ninth Circuit court of appeals, it was passed by unanimous concent on on August 1, 2006, to be signed into law five days later by President Bush.

This Unanimous Consent procedure means that not a single Democratic Senator, including then freshman Senator from Illinois, Barack Obama, chose to take a public stand against this legislation.  The bill transfers absolute control of the monument to the Federal Government, specifically the Department of Defense, whose secretary serves at the pleasure of the President of the United States. The Latin Cross, the object of this twenty year constitutional challenge is not mentioned in the legislation.

The law is to protect a national memorial to American war veterans.  The Cross that towers above it not mentioned, so it remains at the discretion of the President.

 
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Jewish War Veterans 9th circuit suit, decision January 2011

Link to full decision is here, with excerpts below:

[3] The purpose of Congress’s acquisition of the Memorial
was predominantly secular in nature. The Act sought “to preserve
a historically significant war memorial . . . as a national
memorial honoring veterans of the United States Armed
Forces.” Pub. L. No. 109-272, § 2(a). As the district court
noted, the statute is “not directed to the cross per se, nor does
it require the continued presence of the cross as part of the
memorial; it simply requires the Mount Soledad site be maintained
as a veterans’ memorial.

The Act’s statement of purpose likely ends the inquiry. See
Mueller, 463 U.S. at 394-95. Nevertheless, the Act is arguably
ambiguous to the extent that it seeks “to preserve a historically
significant war memorial.” Pub. L. 109-272 § 2(a)
(emphasis added). In Paulson, the case invalidating the City’s
1998 land sale to the Association, we held that only the Cross
on Mount Soledad bears historical significance. Paulson, 294
F.3d at 1132 n.5 (emphasis added). Under Paulson, the Act
could be read to aim at preserving the Cross, which would
arguably make its purpose predominantly religious.
[4] But even assuming that the Act is ambiguous, the legislative
history reflects Congress’s predominantly secular purpose
in acquiring the Memorial.  Representative Hunter, for
example, described the Cross as “not only a religious symbol,”
but also “a venerated landmark beloved by the people of
San Diego for over 50 years” and “a fitting memorial to all
persons who have served and sacrificed for our Nation as
members of the Armed Forces.” 152 Cong. Rec. H5423 (daily
ed. July 19, 2006); see also id. at H5422-02 (stating that
Mount Soledad “is without question a world-class memorial,
dedicated to all of those, regardless of race, religion[,] or
creed, who have served our armed services”).

Representative Issa similarly stated that the Memorial “was intended to do
what it does for the vast majority of San Diegans and people
who come to our fair city. It honors our war veterans for the
sacrifice they made.” Id. at H5424. According to Representative
Issa, the acquisition was “consistent with how we as
Americans have honored our war dead and those who have
given in service to our country” and advanced the “freedom
for people to observe their God as they chose fit.”
.
Representative Bilbray argued for the Act on the grounds
of religious tolerance and the memorial’s secular historical
significance. He cited the presence of “many religious symbols
on public lands” in San Diego County and argued that
“this is not about religion; it is about the tolerance of our heritage
and the memorials to those who have fought for our heritage
across the board.” Id. at H5425.

[5] Finally, although Senator Sessions introduced the Senate
bill as intended “to preserve the cross that stands at the
center of Mt. Soledad Veterans Memorial . . . that is under
attack by the ACLU,” he underlined that the Cross was “part
of a memorial that has secular monuments also.” 152 Cong.
Rec. S8364 (daily ed. July 27, 2006). Taken together, the
floor statements support the text’s demonstration of Congress’s
predominantly secular purpose in acquiring the
Memorial.
Jewish War Veterans’s arguments to the contrary do not
change our view. In particular, the evidence of the role of
Christian advocacy organizations in the Act’s passage is not
probative of Congress’s objective. Although such advocacy
can form part of the context for determining an act’s purpose,
see, e.g., Epperson, 393 U.S. at 107-09 & n.16, we must take
into account the often complex, attenuated, and mediated relationship
between advocacy and legislation. Although the
advocacy by Christian organizations may have been a contributing
factor to the Act’s drafting and passage, the record does
not establish that the sectarian goals of the advocates can be
reasonably attributed to Congress as a whole. In the end,
“what is relevant is the legislative purpose of the statute, not
the possibly religious motives of the legislators who enacted
the law.” Mergens, 496 U.S. at 249 (emphases omitted).10 In
crediting congressional purpose, we underscore, however, that
these congressional statements reflect congressional sentiment
and are not necessarily reflective of the factual record before
us. We turn to the actual record to assess the primary effect
of the Memorial.
pp18
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These prior decisions do little to establish that the
cross is a prevalent symbol to commemorate veterans. In two
of the four cases we found in which crosses were used as war
memorials, the crosses in question were only designated as
war memorials after the start of litigation. See, e.g., SCSC, 93
F.3d at 618 (relating that Latin cross designated as a war
memorial following rulings by the state courts that the cross
violated the federal and state constitutions); Greater Houston
Chapter of the ACLU v. Eckels, 589 F. Supp. 222, 225, 234-
35 (S.D. Tex. 1984) (noting that three crosses and a Star of
David were rededicated as a war memorial after litigation
commenced). In a third case, the plaintiffs similarly alleged
that the cross in question was rededicated as a memorial after
a complaint from a Jewish naval officer that the cross violated
the doctrine of separation of church and state, while the
defendants claimed the cross had always been a memorial.
Jewish War Veterans, 695 F. Supp. at 5. We could locate only
one case in which it was undisputed that the cross in question
was dedicated as a war memorial from the outset. Gonzales,
4 F.3d at 1414, 1421-23 (holding unconstitutional a crucifix
in a public park “to honor the heroic deeds of servicemen who
gave their life in battle”). In light of the multitude of war
memorials in the United States, however, these few examples
do not cast doubt on our conclusion and that of the Jewish
War Veterans’s expert, that the cross has not been a universal,
or even a common, feature of war memorials.16
pp29
-----------------

The question, then, is whether the entirety of the Mount
Soledad Memorial, when understood against the background
of its particular history and setting, projects a government endorsement of Christianity. We conclude it does. In so holding,
we do not discount the fact that the Cross was dedicated
as a war memorial, as well as a tribute to God’s promise of
“everlasting life,” when it was first erected, or that, in more
recent years, the Memorial has become a site for secular
events honoring veterans. We do not doubt that the present
Memorial is intended, at least in part, to honor the sacrifices
of our nation’s soldiers. This intent, however, is insufficient
to render the Memorial constitutional. Rather, we must
inquire into the overall effect of the Memorial, taking into
consideration its entire context, not simply those elements that
suggest a secular message. See American Atheists, 616 F.3d
at 1159 (“[A] secular purpose is merely one element of the
larger factual and historical context that we consider in order
to determine whether [the display] would have an impermissible
effect on the reasonable observer.”). In conducting this
inquiry, we learned that the Memorial has a long history of
religious use and symbolism that is inextricably intertwined
with its commemorative message. This history, combined
with the history of La Jolla and the prominence of the Cross
in the Memorial, leads us to conclude that a reasonable
observer would perceive the Memorial as projecting a message
of religious endorsement, not simply secular memorialization.
pp34
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By claiming to honor all service members with a symbol
that is intrinsically connected to a particular religion, the government
sends an implicit message “to nonadherents that they
are outsiders, not full members of the political community,
and an accompanying message to adherents that they are
insiders, favored members of the political community.
Lynch, 465 U.S. at 688 (O’Connor, J., concurring); see also
American Atheists, 616 F.3d at 1160-61 (“[T]he fact that all
of the fallen . . . troopers are memorialized with a Christian
symbol conveys a message that there is some connection
between [the state] and Christianity. . . .

[T]he significant size of the cross would only heighten this concern.”); Eckels, 589
F. Supp. at 235 (the primary effect of crosses and Stars of
David used as war memorials “is to give the impression that
only Christians and Jews are being honored by the country”).
This message violates the Establishment Clause.25

[23] Accordingly, after examining the entirety of the
Mount Soledad Memorial in context—having considered its
history, its religious and non-religious uses, its sectarian and
secular features, the history of war memorials and the dominance
of the Cross—we conclude that the Memorial, presently
configured and as a whole, primarily conveys a message
of government endorsement of religion that violates the
Establishment Clause.

This result does not mean that the
Memorial could not be modified to pass constitutional muster
nor does it mean that no cross can be part of this veterans’
memorial. We take no position on those issues.

We reverse the grant of summary judgment to the government
and remand for entry of summary judgment in favor of
the Jewish War Veterans and for further proceedings consistent
with this opinion.

Get a war memorial we don’t have to fight over

San Diego Union Tribune
by Logan Jenkins, December 21, 2009

Of all the possible responses to the 20-Year (and Counting) War over the fate of the Mount Soledad memorial cross, the most poignant, it seems to me, is the plea for a re-imagined monument on the federal land.

This is the romantic’s last gasp at reconciling polar opposites. The idealist’s squaring of the cross circle.

Just imagine:

Lawsuits terminated. Peace declared in our time. The skyscraping cross shipped to the lawn of a nearby church. A modern monument cuts the festering Gordian knot that has formed around the Establishment Clause of the First Amendment.

Sam Dolnick, a World War II veteran and a self-described “humanistic Jew,” revived this utopian theme following a recent 9th U.S. Circuit Court of Appeals hearing, which pitted lawyers for the ACLU and the 114-year-old Jewish War Veterans of the United States against the federal government.

This was the latest grind of the wheel as the La Jolla cross slouches toward Washington and its ultimate date with the Supreme Court.

“The difficulty now is that although the fight is against the use of a specific religious symbol to represent all religions of those who died in service, no other symbol is suggested to replace the Christian cross,” Dolnick wrote in a letter to the editor.

Dolnick’s idea, which I had heard at least once before, is to remove the cross and put in its place an artistic replica of the battlefield memorial for a fallen soldier: an upright rifle with a helmet on top and boots on the bottom.

Putting aside the obvious objection — how would the other military branches feel about an Army-centric memorial? — Dolnick’s notion is sweetly futile, a perfect mission for a Jewish Don Quixote.

“It has been my experience over 91 years that when something is objected to, if nothing is suggested to replace the objected item, nothing is ever accomplished,” the La Mesan wrote.

In other words, you can’t beat something with nothing.

The trouble with the 56-year-old cross is that it’s really, really something. In fact, it’s not just one thing. It’s two things.

You could say that it’s both giant and windmill.

As a symbol, the Mount Soledad cross is, at its core, ambiguous. That’s its slippery genius. Even on sunny days, it’s shrouded by a perceptual fog.

On the one hand, it’s a religious symbol, arguably the most freighted in human history. It directly evokes Christ’s Passion. Believers see His suffering in the archetypal outline.

There’s a visceral reason Easter sunrise services are held at Mount Soledad. (You know a giant rifle wouldn’t draw the devout to reflect upon the resurrection.)

The cross is, at the same time (and even in the same mind), a culturally comfortable symbol of death, a 29-foot sentry for a universal military cemetery within which are buried veterans of all — or no — faiths.

In the past 20 years, as combatants have squared off in a long succession of courtrooms, the cross’s connection to the death of veterans has been reinforced by commemorative plaques at its base.

The majority of San Diegans, I suspect, can live with the inherent ambiguity, the coexistence of the divine and the secular, the manifest constitutional violation (an exclusive religious symbol on public land) and the manifest cultural amelioration (a familiar historical emblem that honors the war dead of any or no religion).

The other day, I heard from Al Rodbell, a Carlsbad writer who suggested that my crass view of the cross — I told him that, at this point, I really didn’t care what happens to it — was colored by the fact that I had been sheltered from the “virus” of anti-Semitism.

Rodbell began a follow-up letter to me with a shocking string of profanities hurled at Jews for centuries.

If I were Jewish, if fate had not knit me as a blue-eyed born into a Presbyterian family, I would feel differently about the Christian cross on federal land, he suggested.

Maybe so.

My experience with religious and ethnic prejudice in America has been largely vicarious. To comprehend bigotry, I’ve had to read books, watch movies, marry into a Jewish family.

Still, the cruel irony of a Christian cross looking down on a town that, when the cross was built and afterward, strongly discouraged Jews from living there is not lost on me.

Say or think what you will about the Mount Soledad cross it’s not modern in concept. It’s not cool.

In urging a crusade for a replacement of the Mount Soledad cross, Rodbell asked me to imagine “a soaring work of art, abstract enough to represent the force of religion, the toll of war and the aspiration for peace. It would be a small example to the city, the country and perhaps even the world that there are ways to transcend the limits of a given political system. … The hardpan of congealed conflict has to be plowed, which will take many passes; and then perhaps, just perhaps, a symbol the entire city could be proud of could grace the highest point of ‘America’s Finest City.’ ”

Support the Evolution of the Soledad Cross. Peace on Earth.

As a Christmas message, a gift borne by two Jewish wise men, it has a certain ring to it.

Uncensored (but edited) Letter to Logan Jenkins referenced in his column

A  column was sparked by this letter,  which he excerpted.


Logan Jenkins,
Columnist, San Diego Union Tribune

Dear Logan

"You God Damn Fucking Jew Bastard"

You've never had these words shouted at you. But your wife's father probably did, and if history is any guide, the virus that elicits it, with words foreshadowing deeds, is still extant in the nether regions of this country.


I describe the opportunity he has to reach readers on this issue

I happened to have gotten to know Phil Paulson fairly well the last year of his life. Since for years before that he refused any public appearances, deferring to his legal team, our hours of conversations provided me with an understanding of his motivations to challenge the Cross that are unknown to most. With him gone, with the decision of the national Jewish War Veterans to take up this issue, it will be interpreted by those whose only response to any issue is a jerk of the knee, to depict this in the most ancient of tribalisms, Christians against Jews.

........There is a need to transcend the mechanisms of our political system, a Judiciary and legislative both being binary- "The Cross, Remain or Remove." Transcending this is not to be achieved by a one shot newspaper article, column or OpEd. It will take a concerted campaign.

I spoke to Sam Dolnick, a 91 year old Jewish Veteran  whose UT letter Sunday contained the seed of a resolution. But it would require a level of skill and commitment that I'm not sure is available. It would require convincing those who are currently in control of the "Federal District of Soledad Cross" that eternal conflict is not the truest symbol of the spirit that the Cross represents.

Subsequently, I discovered that the local Veteran's Memorial Group had agreed to this proposal several years ago, but was overruled by the City Council and a referendum of voters.   The decision is now with the actual owners, and the plaintiffs in the current law suit, the U.S. Deptartment of Justice and the Secretary of Defense. 

It would require presenting an alternative, if not the rifle and helmet that Dolnick suggested, a soaring work of art, abstract enough to represent the force of religion, the toll of war and the aspiration for peace. It would be a small example to the city, the country and perhaps even the world that there are ways to transcend the limits of a given political system.

Politicians, both actual and wanabee, love to foment fear and hatred. Each era provides its own targets, but in a pinch, Jews have always filled the need. Is it even remotely in your, or anyone's, capacity to turn this around, to tap the better natures of those in the San Diego Region? How wonderful it would be if this new monument were to be not only a memorial representing those who died in war, but what they died for, which ultimately was the replacement of consuming hatred with a desire to achieve a world in peace.

The decision of the panel of the ninth circuit will not resolve anything, as that decision will be appealed to the full court, and then to the supreme court......with, in this case, right wing personages taking on the role of "defenders of the faith." to their political advantage.

You know the nature of the people of San Diego more than perhaps anyone. You know the component groups, from those "who cling to their guns and religion" to those who dream the dreams of philosophers. It could be that this is the world that we live in, destined to have the execration of hatred play itself out in all areas of political life, until, until, ........we may never know.

Perhaps I have to do some more work, perhaps try to form a group, a foundation, starting with Sam Dolnick, and then explore whether the current overseers of the Cross are even open to such an idea before you take it up. Sam planted the shovel, and the UT printed it prominently. The hardpan of congealed conflict has to be plowed, which will take many passes; and then perhaps, just perhaps, a symbol the entire city could be proud of could grace the highest point of "America's Finest City."

Regards

Al Rodbell

San Diego Union Tribune (U.T)Editorials fostered toxic anger

One Jewish WWII combat vet, whom I described the article to, (Initials M B)talked about how he often visited the Soledad site. And here's some hard data that can be verified. He says that he feels uncomfortable there, as he has looked around the memorial plaques, and only saw a very few Jewish insignias. He struggled to express himself, "that's not....representative of those who fought in the war"

Actually that's a bit of quantitative evidence of the effect of having a cross as the overarching symbol. It could be useful to the plaintiffs, but that's not the avenue that interests me right now. I want to try to win over the hearts of those who currently are stuck in a "Cross, No Cross" binary decision.....to transcend this, rather than have a legal victory that will lead to further animosity.

This U.T. editorials (among many)before the referendum was antagonistic to the point of fomenting hatred, and something I would guess a new, more enlightened Editorial Board may actually want to rectify.

My comments in italics
--------------
Mount Soledad memorial is worth saving
July 18, 2005

Proposition A on the July 26 ballot boils down to a singular question: Do you want to keep the 29-foot cross and war memorial atop Mount Soledad? Or do you want the cross removed, as atheist Philip Paulson has been demanding in court for over 15 years?
If you want to preserve the cross, erected over half a century ago at the end of the Korean War as a tribute to veterans, vote Yes on Proposition A. If you want the cross torn down, vote No.

Not "cross removed" but the more violent connotation of "cross torn down"

As far as the ballot measure goes, it's as simple as that.
As a legal matter, however, the issue is anything but simple.
Proposition A asks voters whether they want to transfer the monument to the federal government, in accordance with a new federal law that designated the site a national memorial. The aim of Proposition A proponents is to sidestep a federal judge's ruling that the cross on public land violates the California constitution.

To be honest, though, there is no guarantee that shifting the property to federal hands would remedy the constitutional issue. The best that can be said for Proposition A is that it might shift the long-running litigation costs of defending the cross from San Diego taxpayers to the federal government. Certainly, passage of Proposition A will not bring an end to Paulson's determined drive to dismantle the cross.

The above paragraphs acknowledge the legitimacy of the breach of the constitution, and admits that the goal is to remove the expense from the city to the federal government. Personification of evil, to "Atheist Phil Paulson" is a classic propaganda technique,

What is very clear, however, is that if voters reject Proposition A, the cross will come down. The City Council already has attempted to end the court dispute by removing the cross. Only a referendum signed by tens of thousands of San Diego voters thwarted the move.

Proposition A is probably the last chance to save the cross, even if it is not a sure bet.

based on antonym for "save" the connotation is if this is not passed the cross will be "killed," something that happens to living things, so removing the cross is connected to the killing of he who the symbol represents.

We believe it is worth a try.
Vote Yes on Proposition A.
----------------------
The tone was clearly to foment hatred towards Phil Paulson specifically, and Atheists in general. If this tone, even as an echo of the previous battle, is revived now,-- if it is not diffused by something different, we could have a resurgence of anti-semitism, something I have heard reports of becoming more previlent.

References to documents and reports

Current Complaint by ACLU v. Dept. of Defense, with full history of this issue.  Paragraph 31, describes the agreement among all parties including the Soledad Cross Memorial Association to move the cross to the church down the hill, and create a new constitutionally acceptable symbol in its place.  This was confirmed to me by the CEO Bill Kellogg, that this decision taken shortly before it was submitted to the city council on July 20, 2004, was by a unanimous vote of the executive board.

Recent controlling decision by a three judge panel of the 9th circuit of 1/04/11.  That if not granted certiorari as of end of April 2012 will be subject to enforcement.  Not the similarity with their remedy with the agreement that had been reached among all parties in 2004, as referenced above.

Law, passed in July 2006,  that placed Memorial under the control of Department of Defense, with only maintenance by the SMMA.   Thus the continuation or removal of the cross is under the discretion of the Federal Executive branch and not local authorities. Here is the legislative history.   Here is the full text of the law, with a preface that is a narrative of the losing side in every appeals court decision.  

Union Tribune Article of June 10, 2005. Describes the lineup of those who want to pass a referendum that would negate a previous one earlier in the year that instructed the City Council to relocate the cross to a nearby church. Jim McCoy, lawyer for plaintiffs feel that it would be ruled unconstitutional so they did not fight this referendum.

Thomas More Legal Center Amicus Curae brief on 2006 case before ninth circuit


WorldNetDaily article describing the 9th circuit appeal of the decision against the ACLU and the Jewish War Veterans:

Joe Infranco is a lawyer with the Alliance Defense Fund, a legal group that filed a friend-of-the-court brief on behalf of the American Legion Department of California. He told WND that after 45 minutes of arguments in 9th U.S. Circuit Court of Appeals, it was difficult to tell which way the three-judge panel was leaning.

Joe Infranco, a lawyer with the Alliance Defense Fund, said "If the Supreme Court does not take the case, and they take very few, then the appellate decision stands,"   Asked whether the cross must come down if the Department of Defense does not win its case, Infranco said, "That's an excellent question. I overheard veterans at the argument today talking about civil disobedience if they're ordered to dismantle the cross." He continued, "This excites a lot of emotion among the veterans. Veterans groups in the country are outraged by this lawsuit."

Union Tribune Article on District Court Decision supporting Federal Takeover of site, July 30,2008-Decision based on broader ruling by Federal Constitution than California's.

text of law transfering Soledad monument to

[109th Congress Public Law 272]
[From the U.S. Government Printing Office]


[DOCID: f:publ272.109]

[[Page 769]]

MT. SOLEDAD VETERANS MEMORIAL ACQUISITION

[[Page 120 STAT. 770]]

Public Law 109-272
109th Congress

An Act



To preserve the Mt. Soledad Veterans Memorial in San Diego, California,
by providing for the immediate acquisition of the memorial by the United
States. <>

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress <note.>> assembled,

SECTION 1. FINDINGS.

Congress makes the following findings:
(1) The Mt. Soledad Veterans Memorial has proudly stood
overlooking San Diego, California, for over 52 years as a
tribute to the members of the United States Armed Forces who
sacrificed their lives in the defense of the United States.
(2) The Mt. Soledad Veterans Memorial was dedicated on April
18, 1954, as ``a lasting memorial to the dead of the First and
Second World Wars and the Korean conflict'' and now serves as a
memorial to American veterans of all wars, including the War on
Terrorism.
(3) The United States has a long history and tradition of
memorializing members of the Armed Forces who die in battle with
a cross or other religious emblem of their faith, and a memorial
cross is fully integrated as the centerpiece of the multi-
faceted Mt. Soledad Veterans Memorial that is replete with
secular symbols.
(4) The patriotic and inspirational symbolism of the Mt.
Soledad Veterans Memorial provides solace to the families and
comrades of the veterans it memorializes.
(5) The Mt. Soledad Veterans Memorial has been recognized by
Congress as a National Veterans Memorial and is considered a
historically significant national memorial.
(6) 76 percent of the voters of San Diego supported donating
the Mt. Soledad Memorial to the Federal Government only to have
a superior court judge of the State of California invalidate
that election.
(7) The City of San Diego has diligently pursued every
possible legal recourse in order to preserve the Mt. Soledad
Veterans Memorial in its entirety for persons who have served in
the Armed Forces and those persons who will serve and sacrifice
in the future.

SEC. 2. ACQUISITION OF MT. SOLEDAD VETERANS MEMORIAL, SAN DIEGO,
CALIFORNIA.

(a) Acquisition.--To effectuate the purpose of section 116 of
division E of Public Law 108-447 (118 Stat. 3346; 16 U.S.C. 431 note),
which, in order to preserve a historically significant war memorial,
designated the Mt. Soledad Veterans Memorial in San

[[Page 120 STAT. 771]]

Diego, California, as a national memorial honoring veterans of the
United States Armed Forces, there is hereby vested in the United States
all right, title, and interest in and to, and the right to immediate
possession of, the Mt. Soledad Veterans Memorial in San Diego,
California, as more fully described in subsection (d).
(b) Compensation.--The United States shall pay just compensation to
any owner of the property for the property taken pursuant to this
section, and the full faith and credit of the United States is hereby
pledged to the payment of any judgment entered against the United States
with respect to the taking of the property. Payment shall be in the
amount of the agreed negotiated value of the property or the valuation
of the property awarded by judgment and shall be made from the permanent
judgment appropriation established pursuant to section 1304 of title 31,
United States Code. If the parties do not reach a negotiated settlement
within one year after the date of the enactment of this Act, the
Secretary of Defense may initiate a proceeding in a court of competent
jurisdiction to determine the just compensation with respect to the
taking of such property.
(c) <> Maintenance.--Upon acquisition of the Mt.
Soledad Veterans Memorial by the United States, the Secretary of Defense
shall manage the property and shall enter into a memorandum of
understanding with the Mt. Soledad Memorial Association for the
continued maintenance of the Mt. Soledad Veterans Memorial by the
Association.

(d) Legal Description.--The Mt. Soledad Veterans Memorial referred
to in this section is all that portion of Pueblo lot 1265 of the Pueblo
Lands of San Diego in the City and County of San Diego, California,
according to the map thereof prepared by James Pascoe in 1879, a copy of
which was filed in the office of the County Recorder of San Diego County
on November 14, 1921, and is known as miscellaneous map No. 36, more
particularly described as follows: The area bounded by the back of the
existing inner sidewalk on top of Mt. Soledad, being also a circle with
radius of 84 feet, the center of which circle is located as follows:
Beginning at the Southwesterly corner of such Pueblo Lot 1265, such
corner being South 17 degrees 14'33" East (Record South 17 degrees
14'09" East) 607.21 feet distant along the westerly line of such Pueblo
lot 1265 from the intersection with the North line of La Jolla Scenic
Drive South as described and dedicated as parcel 2 of City Council
Resolution No. 216644 adopted August 25, 1976; thence North 39 degrees
59'24" East 1147.62 feet to the center of such circle. The exact
boundaries and legal description of the Mt. Soledad Veterans Memorial
shall be determined by survey prepared by the Secretary of Defense. Upon
acquisition

[[Page 120 STAT. 772]]