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.

 
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