Introduction

Updated July 1 2012

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,  which has now been vindicated by the Supreme Court.  

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 cross stays, which is being decided as if it is were a legal issue, one that can be adjudicated based on a logical exegesis of precedents, is not realistic.

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 23rd 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.

Personal Ruminations on this Controversy

July 4, 2012

My personal website is simply AlRodbell.blogspot. com, which links to this one on the Soledad Cross. A bit of irony is that most of the traffic to that site seems to come from those interested in my video essay of the trip to Mexico I made with Tom Cantor.  While I'm on the side of the atheists, those who opposed to this Cross, Cantor is a man who is dedicating his life to bringing people to Christianity, the most literal creationist version of it.  Yet, we have an emotional connection that transcends this vast chasm, which I describe in that essay.

I've had some cursory response from the main petitioners in the recent case, ACLU and lawyer for the associate of Phil Paulson, the man who started it all.  But,  my attempt to ferret out the back scenes activity,  to know whether there was any attempt at compromise from either side, has had limited success.  The lawyers running the show keep a tight ship.  Until the property was transfered to the federal government, this was a local issue, mostly lead by Paulson and his lawyer.   When the Jewish War Veterans (JWV) joined the case in response to the federal takeover, it was opposed by the local branch of the JWV, and probably still is.

 Ironically, the decision of the Ninth circuit court will allow this memorial to retain its religious identity as it specifically said that it may include a cross, which implies that it must include other religious symbols.  This, in the aggregate may still send a message of official monotheistic support.  The new court-defined memorial then could become a representation of "one nation under God" as in the section of the Pledge of Allegiance that had been ruled unconstitutional by the same court of appeals in 2002.

Most people choose to not to become involved in this issue, and I can't blame them. Compared to other pressing public issues such as fiscal viability,  health care and our war on drugs,  this is a sideshow.  Since going into the jurisprudence, the long line of precedent, along with the complex history of this particular case , I have been having some personal thoughts on the meaning of this at different levels.  I do have the links for those who may be interested in these traditional academic approaches on my introduction, and I have edited for clarification the extensive history of this on the wikipedia site, Soledad Cross Controversy.

I have to wonder if the Soledad Cross has a value as a controversy as being more than the sum of its parts, more than the newspaper headlines can capture.  Just as in England two soccer teams have a long running battle that sometimes becomes deadly---real hatred between fans that can lead to deadly consequences;  perhaps the defenders of the cross, the politicians and newspapers who foster this primal emotion, are giving people a purpose, a focus for primal instincts that we share with beings lower on the phylogenic scale.   The first chapter of Mark Pagal's "Wired For Culture" gives examples of how such warlike hatred between "tribes"seems to be found in all societies, taking many forms.

It seems that we need to have such strong emotios, made stronger by confrontation, even hatred of those who are identified as the enemy. My seeking to find the common thread of reason, of humanity, that will transcend this is probably going against a rather powerful part of our human nature, how we are wired to survive.  It's no accident that this part of our nature is not more widely recognized, or when it is, it is seen as pathological, an aberration of how most of us conduct our lives.  Part of the hallmark of our species is the ability to communicate,  which requires a shared idea, or ideal, of rationality, of fairness, that allows us to transcend these more primal aspects.

On May 26, 1963 (date confirmed by N.Y. Times archives)  I experienced this.  It was on Second Avenue in a Manhattan community, Yorkville, that twenty five years before had been the center of the Nazi Bund in America, and still with a strong German tradition.  I tell the story about a conversation at a cafeteria in the neighborhood, pointing out to the server what I wanted,  "There that one, the kaiser roll." And to this day, I remember her wistful response. as with a fleeting smile she was back in Germany, "Ahh, the Kaiser...." expressing a sweet memory from her childhood.

But on this day it wasn't so nostalgic, as a group of neo Nazis had chosen this spot to exercise their constitutionally guaranteed freedom of assembly and speech. It seemed like half the New York police department were interposed between the hastily erected stands and the procession of the group in full Nazi garb carrying an American Flag to protect them from the rage they knew was coming. As the leader started to speak, the crowd reacted, but this time I wasn't the defender of constitutional rights, but a Jew who was enraged by these people.

The electricity was palpable, and I was a part of it, feeling it, gaining strength from the crowd, that now was becoming a mob. A few people broke through the police cordon and tore the flag away from the speaker, striking a cop who was trying to intervene with it.  It was all over in a flash as the police arrested the man who had wielded their flag, and escorted the speakers away to safety . The mob, my mob, one that I felt a rare pleasure of belonging to, had denied these citizens of their Supreme Court affirmed constitutional rights.  And I was elated.

To those who see the cross as an affirmation of their being part of something that  provides them strength and solace, a protection from the very human dread of isolation--as deeply rooted as when such isolation meant being vulnerable prey.   In this drama over the cross, with some prodding, it was the atheists who are transformed as the primal enemy,  as those with the swastikas were to me.  My reaction then,  as with those who will fight to the death to keep their cross now,  may be beyond the reach of the kind of discourse found in legal briefs.   

God, for those who believe, provides something we rarely think about as expressed in this quotation:


"The sacred rights of mankind are not to me rummaged for among old parchments, or musty records. They are written, as with a sunbeam in the whole volume of human nature, by the hand of divinity itself: and can never be erased or obscured by mortal power"

These are the words of Alexander Hamilton, and while not part of the U.S. Constitution, it is in the inside cover in to the most widely circulated version, the one printed in the millions that is handed out by elected officials and political candidates.  "Old parchments and musty records" mean laws, constitutions, like the one that he helped write and signed on to.  Yet, he subordinates it to "human nature that is the work of divinity" that takes priority over such documents.

Few secularists would contest Hamilton's sentiment when "deity" and "human nature"-- are seen as something different, as deep forces of evolution that we never can quite codify into "old parchments or musty records." "Sacred rights" just may not be amenable to codification by statute or legal precedent by mortal power, even if its wearing supreme court robes.

Yet, the reality is that all we can do is try. In the words of a man who, unlike Hamilton did make it to the presidency before being killed, "Knowing that here on earth God's work must surely be our own" These final words are from JFK's inaugural address, yet they reflect the hope of the major figures of his era.  That speech also expressed the need to keep trying transcend our instincts to war, whether among nations, ideologies or religions. It is a call for dialogue and reaching out and not resorting to violence if one's view does not prevail.

And so the pageant of humanity continues to play itself out.

Alito's Statement on denial of Certiorari

June 30, 2012

Samuel Alito, as a citizen of the United States, has every right to argue for preserving the 42 foot tall Latin Cross on publicly owned property on Soledad Mountain in San Diego. I have good friends who feel just the way that he does, that the Cross provides comfort, a confirmation of the strength of their religious beliefs, and other feelings that make them angry at those who want to see it removed.

"Why can't those atheists just leave well enough alone?" and "Don't we have other things more important than worrying about a cross?" These are what these people say to me. Others, some in public such as talk radio are more confrontational, even threatening. Let me quote from this article from  the most read San Diego columnist, Logan Jenkins:

Of grave importance to San Diego County, the high court decided Monday that an appellate court’s ruling — which held that the Soledad cross is, at its core, unconstitutional — has not run its course. In other words, the case is half-baked. More agony needs to be endured, quixotic attempts at compromise must be exhausted, before the Supreme Court might feel compelled to rule if the landmark cross is, at its essence, an exclusive Christian symbol signaling preference for one religion or an inclusive memorial symbol within the pale.

Logan and I have had a decade of dialogue over his views, and after some prompting a year ago wrote an article where he agreed that the Cross should be replaced by something more ecumenical, "A cross we don't have to fight over." But he made the same error in this recent article that others made in the media, thinking that Justice Alito's gratuitous statement defined the actions of the Supreme Court. He continues, elaborating on the violence caused by Alito's intervention

Of course, this distinction is, at its essence, sophistical. The divine and the secular meanings of the cross/memorial are so fused they’ll never be separated to universal satisfaction. They form a Gordian knot that will never be cut without violence. Yes, blood may run down Via Capri if the cross is bulldozed by court order. “Roger Hedgecock would chain himself to the cross,” predicted Bill Kellogg, the even-keeled president of the Mount Soledad Memorial Association.

The violence that Logan and Kellogg predict has become more of a potential reality because of one individual's three page letter. While Mr. Alito has all the expansive rights of any individual to advance his personal goals, when he dons those black robes the world makes the assumption that he is speaking for this institution. His statement on the Cross is thus reported widely as the sense of the court, as exemplified by this story by the legal branch of the social conservative movement.

First is to make clear that Alito was only speaking for himself, that his statement is no more than his personal spin, see this definition from this official Supreme Court site.

The opinions included here are those written by individual Justices to comment on the summary disposition of cases by orders. Such an opinion might, for example, dissent from the denial of certiorari or concur in that denial

Here is his personal statement on Monday's refusal of the court to grant certiorari, meaning to review the Ninth Circuit Decision that the 42 foot high Latin Cross on Federal land is unconstitutional. In this statement he references this one by Justice Clarence Thomas, on a very similar establishment clause case that also pointed out the subjective nature of jurisprudence, of precedent on this area of constitutional law. There is one major difference between the two, one that is so subtle, yet so pernitious, that it has not been explored before this essay.

 While both manifest the same sentiment in their respective cases, disagreeing with an appeals court decision that would have removed a cross from public land, they took opposing positions towards the Supreme Court's refusal to grant certiorari, the first step in overruling this decision. Thomas acknowledged this disagreement, that he was in the minority of the court on his views, by describing his personal statement as a dissent from the refusal of certiorari. Alito, stating that he concurred with the denial, while giving no indication of his long standing position that could only be achieved if the court had accepted the case for review.

Alito, while not explicitly writing that his statement was that of the majority, must have realized that it would be construed as such. His statement may, in fact, represent the views of other justices, or even a majority, or as evidence presented here indicates, it probably does not.  If it turns out that he has correctly characterized the rationale of his colleagues, my criticism shifts from him personally to the entire court, and those members who allowed this biased statement to be released without rebuttal; and that also allowed the eighteen months of delay on issuing the refusal of certiorari, something so obvious according to Alito that it could have been disposed of in weeks.

In this case, delay is in the service of those who want to retain the dominant Christian symbol of the cross.  It is in the nature of "facts on the ground," the same principle that makes the reality of Jewish settlements in the West Bank more resistant to removal with each year that they remain.  It becomes established in the minds of people, some from their earliest memories.  Such "facts on the ground", whether symbolic as the cross or material, as houses, become established by the length of their existence.  The fifty one page opinion of the unanimous ninth court decision, while a precise and sensitive exposition on the long saga, is not widely read,  even by those who write newspaper articles; while the majestic cross continues to stand for all to see.

Alito's statement has effectively shed doubt that the refusal to grant certiorari meant, "case closed." which is exactly what it did mean, as it has for all of the thousands of such refusals by the Supreme Court over the years. I would welcome anyone to go the the link and read the three page statement, which is really a reiteration of the defendants and amicus briefs to retain the cross. One paragraph of Alito's statement deserves special critical analysis:

The current petitions come to us in an interlocutory posture. The Court of Appeals remanded the case to the District Court to fashion an appropriate remedy, and, in doing so, the Court of Appeals emphasized that its decision “d[id] not mean that the Memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the Memorial].” 629 F. 3d, at 1125. Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will be required to take, I agree with the Court’s decision to deny the petitions for certiorari.

"Interlocutory Posture" has this precise legal meaning " A temporary order issued during the course of litigation" which since the particular litigation of the appeals court was long completed is used figuratively. And in reality, no litigation is ever over. New evidence may be uncovered, new court decisions may intervene, the mandated order may not be followed.......His mentioning further petitions to the Supreme Court implies that this is the exception showing the central issue is still open.

 The court of appeals decision was interpreted by the defendants, the Department of Defense, who now owns the site, as represented by this DOJ brief, along with an Amicus Brief representing thirty four of the congressional sponsors of the relevant law, as being perfectly ripe, that the pending decision of the ninth circuit was definitive as to the gravaman of the case, that the latin Cross that is now the singular element of the memorial, must not remain.  Every group that urged retaining the the cross argued that certiorari be granted.


 The exact words of the order by Judge Keown, author of the unanimous ninth court of appeals decision is:

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. REVERSED AND REMANDED

"further proceeding consistent with this opinion" does not mean that the district court shall design and impose on the parties to the litigation its own substitute memorial. It is an order, a precise order for an open process to reach a consensus "consistent with this opinion"  Alito is willfully misreading the order of the appeals court, and his colleagues. 

Since the first order by a Federal District Court Judge in 1991 that the cross was unconstitutional, every possible ploy has been used to subvert that one, and all of the decisions that followed. With the announcement of denial of certiorari on June 25, 2012, after twenty one years, one Jurist, Samuel Alito, by casting doubt on the definitive nature of this Supreme Court action finds another way to undermine juridical authority .  Based on letters to the editor to the major daily newspaper, the very one that had stoked resistance to removing the cross for decades, the public sentiment is turning around to accept what the ninth circuit has mandated and the Supreme Court affirmed-that the Cross should be replaced.

Samuel Alito's casting doubt on the definitive nature of these recent actions by federal courts of appeal should be condemned for conflating of personal advocacy with the administration of justice. It represents the debasement of our courts and worse, it has the effect of fomenting the very internecine hatred that the establishment clause of the constitution was crafted to prevent.


Al Rodbell
Encinitas, CA

Now What-after Supreme Ct. Refuses to take case

June 27, 2012

Most news reports have stated that this 23 year long legal Odyssey now goes back to the federal district court, at which point if it issues an injunction to remove the existing cross, a new appeal could be filed.  And the decision on this appeal could once again be submitted for review to the Supreme Court.

After a careful reading of the briefs and decisions of the district court and the court of appeals, which now stands after yesterday's Supreme Court's denial of certiorari, the mandate to change the existing monument has the force of law.  Given the extensive delay in making this determination, it was obviously a seriously considered one, with the justices having a full understanding of its implications.

Given that the 9th did not explicitly overturn the taking of the property by the federal government, the obligation to redesign the memorial is incumbent on the executive branch, ultimately the President.  The 9th court order for "Further proceedings consistent with this opinion" can only mean action on redesign and replacement of this memorial.

The house Republican caucus ramrodded the condemnation of the land under the memorial in order to place it under the Department of Defense.  Not a single senator,  including Democrats, had the courage to vote to prevent this crass tactic from succeeding.  It is now Federal property, which makes the kind of compromise that had been agreed to by all parties in 2004, much more difficult to achieve.

The conservatives on the Supreme Court, based on the length of time in deciding to let the 9th court of appeals determination that it was unconstitutional stand, obviously wanted to endorse this symbolic proclamation that the United States of America is a Christian country. It would have taken the votes of four Justices, meaning it was at least 6 to 3 NOT to accept this case.   Justice Alito's description of the tentative nature of the court's confirmation of the unconstitutionality of the single dominant cross, while an  unofficial individual statement, most likely reflects the underlying view of this minority of the court. (last two pages of this report)

His lone unofficial statement provides plausible denial that this action by the Supreme court confirms that the existing configuration of the memorial is unconstitutional.  While this may be simplified as another example of left vs. right, conservatives v. liberals, it is not that clear 

The Obama administration brought the challenge against the 9th court of appeals decision, writing "  the government would have to "tear down" the cross if the Supreme Court rejected its petition.   This was the same phrase used by those who have scuttled reasonable compromise over two decades, and is a shameful mischaracterization of the actual moderate appeals decision that specifically stated that a cross could be part of a modified monument.

Meanwhile there is evidence that the sentiment of San Diego citizens is changing, based on letters to the editor of the single daily paper that are published in proportion to those expressing a common point of view. This means that a city that had voted to do everything not to follow previous court rulings to remove the cross, now favor creating a new monument by roughly 8 to 1,

----------------------
Link to Amicus Brief of 34 members of congress that requested the Supreme Court grant certiorari.  The content of this brief makes it clear that the case is not as Alto said in "an interlocutory position" meaning not at an end.  The central issue address in this Amicus Brief was the constitutionality of the existing cross, which was argued extensively on the merits, something Alito said was not considered in not granting certiorari . placing him in disagreement with 34 legislators who were represented by this brief.
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From ACLU-Jewish War Veterans Brief to 9th Circuit:

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief:

(a) A declaratory judgment that the taking of the Mt. Soledad Latin cross and
its continued display on federally owned land violates the Establishment Clause of the First Amendment of the United States Constitution;

(b) The entry of a preliminary and permanent injunctive relief enjoining the continued display of the Mt. Soledad Latin cross on federally owned land

(c) Encourage and permit the Latin cross to be moved, at the expense of individual citizens who believe that the Latin cross should be preserved, to an appropriate non-governmental site;

(d) An award to Plaintiffs of their costs, expenses, and attorneys’ fees; and

(e) Such further and other relief as this Court deems just and proper.
DATED: August 24, 2006
------------
Here is the final part of the 9th decision, now affirmed by the Supreme Court.

[23] Accordingly, after examining the entirety of the Mount Soledad Memorial in context-having considered it's history, it's religious and non-religious uses, its sectarian and secular features, the history of war memorials and 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.

REVERSED AND REMANDED

-----------------

History Of Soledad Cross Controversy

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 the community of LaJolla, in the city of  San Diego, California.

Pre Litigation history of the site

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.

First Lawsuit

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.

 
---------------

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
---------------

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
--------------

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.

Phil Paulson comment

I was doing some google searching and came across this chat dialog with Phil Paulson, the man who brought the first suit in 1989 and spearheaded this campaign to preserve the proverbial wall until he died in 2006.  Here's the Link 

Justice Kennedy's Soledad Intervention

Brights, SDARI and Philip

Since my letter last week, "Soledad White Flag?" I have read the responses such
as Philips below, that clearly state why the law at all levels is on our side.
This is exactly why Kennedy's action was so stunning.

After seventeen years of litigation, those flouting our laws now need more time?
Something must be brewing, and I posited a sea change in jurisprudence under the
rubric of return of "the Constitution in exile."

Let me state a few assumptions, some well know, others less so:

The values of the Bill of Rights are loosely held by the American People.
Phrased in certain ways in polls, they do not get majority support.

By definition, in spite of Garrison Keillor's Lake Woebegone, half of Americans
have I.Q.s in two digits. They relate to Atheists taking away our Cross but draw
a blank on the advantages of a secular government.

Once political leaders lose the inhibition against fomenting religious hatred,
which is picked up by the mass media, and exacerbated by demagogues such as
Hedgecock and O'Reilly, there is a mass movement that takes on dangerous
proportions.

The bedrock resistance has been the courts, which represents the enduring values
that are beyond the understanding of the general public, and too tempting an
issue for those media and political figures who stand to garner fame and fortune
by marching at the head of the angry crowd.

There are two bills working their way in congress that will have a major impact
on the fight against religious encroachment. One will allow Military Chaplains
to Proselytize Christianity even in required assemblages of troops. The other,
more substantive, will remove the reimbursement of legal fees for cases against
unconstitutional encroachment of religion symbols. Had this law been in effect,
the Soledad case would not have been feasible.

The trust of my communication with this group is that we look at the
social,political and legal realities of the moment. My tittle "White Flag" was
ill chosen. The better question is how can we preserve our rights, in what is
looking like a sea change of disturbing proportions.

Al Rodbell


Humanist Phil Osophy wrote:
Carl,

Will the Supreme Court Justices Roberts, Alito, Scalia, Thomas and Kennedy
decide (5 to 4 ruling) to condemn the Mt. Soledad Natural Park with the
pending authority of Congressional "eminent domain" powers in order to save
the "Mt. Soledad Easter Cross?" Three San Diego area Congressmen Hunter,
Bilbray and Issa have an unconstitutional bill pending in the US Congress to
do just that. But Cunningham Memorial Cross will be remembered.

During the late hours of night on the floor of the US House of
Representatives, Congressman Duke Cunningham (Republican-San Diego) slipped
into an Omnibus spending Bill HR4818 an irrelevant Mt. Soledad Park Rider on
the House Report bill, that would make Memorial Status for the Mt. Soledad
Cross and Public Park inserted into this US funding legislation; No
description of the Rider was read aloud and no debate was allowed according
to the railroaded House Rules. Frankly, nobody knew that the Rider was in
the House Report Bill, except Congressmen Duke Cunningham, Duncan Hunter and
Tom DeLay. However, the House Report Bill stipulated that the City of San
Diego would have to transfer (gift or sell) the park over to the US
government.

Please note that religious symbols placed on federally owned parklands
violate the US and California Constitutions [Buono vs. Norton, 2004 WL
1238143 (9th Cir. Jun. 7, 2004)]; Buono vs. Norton court ruling is settled
law and public policy with regard to federal parklands.

By the way, Cunningham is now Inmate 94405-198.

The 1st Amendment (Bill of Rights) to the US Constitution provides for the
"Establishment Clause." Religious establishment is prohibited. "Congress
shall make no law respecting an establishment of religion ..." and the Mt.
Soledad Easter Cross positioned on a public park in San Diego is the
unmistakable symbol of the Christian religion. The Mt. Soledad Easter Cross
conveys a sectarian message, "Jesus Rules America."

 Philip Paulson

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]]

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