Updated May 25, 2015
This website is written by Al Rodbell, a resident of Encintas California a few miles north of the memorial. It is inspired and informed by my friendship with Philip K. Paulson, who personally initiating the first lawsuit that claimed that the cross on public land was unconstitutional.
This case has been a lightning rod for one of the sharpest conflicts in what is often called the "culture wars" within the United States, that include abortion, affirmative action and many other controversies that tap powerful emotions that become part of political divisiveness. I have written an extensive analysis critical of Justice Alito's statement on denial of certiorari by the Supreme Court. Yet, as I continue to research this, I realize that the decision on whether the single cross stays, which is being decided as if it is were a legal issue that can be adjudicated based on a logical evaluation of precedents, is too simplistic.
When this first became a legal question in 1989, the United States was about to be victorious in the long cold war with atheistic communism, a cause that in general united our country. As I write these words on Memorial Day 2015, our greatest enemy is a force that is based on a rogue nation, the Islamic Caliphate (known as ISIS or ISIL) where faith in God is the driving force in obtaining victory over all who deviate from their fringe reading of the Islamic Koran. There is an element in this Soledad saga, that pits the motivating principle of ISIS against secularism, which I would describe as the principle that any religious belief is subordinate to the state, ideally one that adheres to democratic due process. I do not possess the words that can define this conflict in neutral terms, if they actually exist at all.
The latest act in this almost three decade long story occurred was in the last days of the 2014 Congress with a bill, signed by the President, that would transfer ownership of the site to the Mt. Soledad National Veterans Memorial Association. One aspect of this transfer is that it would be for the assessed value, yet this very ploy was attempted once before and the court ruled it was a sham since there was no open bidding. This article from the local paper along with the comments gives insight into divided views of the people.
Here is the latest district court decision of 12/12/13 that makes an explicit injunction to remove the cross. This satisfies Alito's objection that the previous appeals decision was in "interlocutory mode" and not ripe for the Supreme Court to adjudicate. This removes the possibility of further compromise, as the order is to "remove the cross." The judge specifically stayed execution until the expected appeals to the appellate court and the Supreme court are completed.
The Soledad Cross is an palpable symbol of different things for the two cultures, one of religious faith the other of, well, something else. While a majority of the members of the Supreme Court get to ultimately decide this issue, given that any given Justice is there by a series of accidents, an untimely death of a predecessor or a political anomaly; the august decision of the Supreme Court, to be cited for decades as The rule of law, as the ruling Ex Cathedra, isn't much more than the random cosmic coin toss.
The history of this site (in a separate article below) goes to the removal of the land from local to federal ownership in 2006 by an act of congress. The suit that followed was first rejected by the district court, which was then reversed by this 3 to 0 decision of the 9th Circuit.
On June 25, 2012, the Supreme Court refused Certiorari, thus sustaining the 9th circuit decision that mandated redesign of the memorial, now owned by the USA. By this action the Supreme Court, arguably, affirmed the premise of 23 years of litigation, that the Cross on this memorial was unconstitutional.
Justice Alito wrote this commentary (last two pages of this memo) to the rejection of certiorari, that had the effect of questioning the finality of the courts refusal to revisit the decision that the existing cross was unconstitutional. He noted, correctly, that if the revision failed to cure the defect to the satisfaction of all parties, it could be re litigated.
This is a complex convoluted legal, political and societal story in its 25th year. I have attempted to provide a comprehensive resource for those who want details, while still being palatable for those with a more general interest. I have a personal point of view that becomes clear, that I have attempted to keep distinct from the facts of this history.
History of lawsuits, negotiations, referendums and more law suits, up to current decisions of 2011-2012
Here is a recent column of June 26, 2012 by Logan Jenkins on the denial of certiorari, It describes the threats of violence if the decision of the 9th circuit is implemented. He had written a previous column on this issue describing my contact with him that came to a different conclusion.
To read more about local political, media and other elements, please go to the dates to the left of this page, click the arrows and a description of the essay will appear.