Mount Soledad cross controversy


Mount Soledad cross controversy

Coordinates: 32°50′23.27″N 117°14′40.73″W / 32.8397972°N 117.2446472°W / 32.8397972; -117.2446472

Mount Soledad Easter Cross

The Mount Soledad cross is a 29-foot (9 m)-tall cross (43 feet tall, including the base) that was erected in 1954 on top of Mount Soledad in La Jolla, California.

A cross has been on the site since 1913.[1] Architect Donald Campbell designed the present Latin cross in recessed concrete with a twelve-foot arm spread in 1954. In 1998, after the sale by the City of the cross and the land it stands on to the nonprofit Mount Soledad Memorial Association, the cross was transformed into being the centerpiece of a newly erected Korean War Memorial.

Beginning in 1989 and ongoing to the present, the Mt. Soledad Cross had been involved in a continuous litigation regarding its legal status. According to the interpretation of the First Amendment of the U.S. Constitution and No Preference Clause of the California Constitution by the opponents of the cross, it is illegal to display a religious symbol, such as a Christian cross, on public land, as it demonstrates preference to a specific religion and thus violates the separation of church and state. Judges have sided with plaintiffs on multiple occasions and ruled that the cross is illegal and had to be removed or sold to the highest bidder. Defenders of the cross explored several options for preserving the cross. The land under the cross was eventually transferred to the federal government. Critics of the cross allege that, even if the transfer itself is legal, it does not solve the fundamental problem of the argument that the cross is not legal on any government-owned property.

The American Civil Liberties Union proposed ways to resolve the situation:

  • The cross may be dismantled.
  • The cross may be sold to a third party and physically transferred off the public land. An Episcopal church, located within a few hundred feet from the present location of the cross, has agreed to place it on its property.
  • The government may hold an auction and sell the parcel of the land with the cross to the highest bidder. However, the government is not allowed to give any preference to those buyers who are interested in preserving the cross. An auction such as this was the subject of Proposition K in 2004, which failed 40% to 59%.

Defenders of the cross saw all these options as unacceptable and were determined to find a way to leave the cross intact in its present location.

Contents

History of cross prior to 1989

Three differently shaped Christian crosses have been constructed since 1913 on City government property at the apex of Mt. Soledad (Mt. Soledad Natural Park) in the community of La Jolla.

The original wooden cross on Mt. Soledad was erected in 1913 by private citizens living in La Jolla and Pacific Beach, but was stolen in 1923; later that year it was affixed back in the ground in Mt. Soledad Natural Park only to be burned down by the Ku Klux Klan. [2] [3]

The second cross was erected in 1934 by a private group of Protestant Christians from La Jolla and Pacific Beach. This sturdier, stucco-over-wood frame cross was blown down by blustery winds in 1952.

The third cross, 29 feet (9 m) tall on top of a 14-foot (4 m)-tall stepped platform, was installed in 1954. It still stands today. A windstorm damaged one of the flimsily constructed cross members in 1955 and the concrete structure had to be repaired.

Mt. Soledad Easter Cross or War Memorial?

Whether the Mt. Soledad Easter Cross is a war memorial or the unmistakable symbol of the Christian religion, it was a subject of legal debate for the following reasons:

  1. Every annual publication of the Thomas Brothers Maps from 1954 to 1989 presented a geographic legal description of the location as the "Mt. Soledad Easter Cross" after which year (cross case was filed on May 31, 1989) the name of the legal location on the map was changed to the "Mt. Soledad Memorial." – [Paulson v. City of San Diego, 262 F.3d 885 (9th Cir. 2001), Documents on file with the US District Court of Southern California]
  2. There was no placard or marker to be found anywhere on Mt. Soledad Natural Park nor at the site of the Mt. Soledad Easter Cross to indicate that it was a veterans' memorial until after November 11, 1989, (See picture below of the Plaque at the base of the cross).
  3. Every Easter holiday sunrise since 1954 was an occasion at the Mt. Soledad Easter Cross for local Christian worship services. On Easter Sunday, April 7, 1996, University of California-San Diego Political Science Professor (Emeritus) Peter Irons applied for and was granted a permit and conducted a well-attended secular sunrise rally for people of all religions and for those with no religion. There is no record of a Jewish, Muslim, Hindu, Buddhist or any other major religious sect or denomination having a religious service on Mt. Soledad.
  4. The Mt. Soledad Easter Cross was dedicated to "Our Lord and Savior Jesus Christ" in a dedication bulletin by the grandmother of William J. Kellogg, President of the Mt. Soledad Memorial Association on Easter Sunday, 1954. – [Paulson v. City of San Diego, 262 F.3d 885 (9th Cir. 2001), Documents on file with the US District Court of Southern California]
  5. The Mt. Soledad Memorial Association made improvements to the property within Mt. Soledad Natural Park. All improvements were added after the original case was filed and while litigation proceedings were taking place. "Six concentric walls hold 3,200 black granite plaques purchased by donors and engraved with the names and photos of war veterans – currently more than 1,700 are in place."[4]
  6. The Mount Soledad Memorial Association says the purpose of the Veterans Memorial at Mt. Soledad Park is to commemorate and memorialize all those who died during the Korean War era. However, they chose to dedicate it on Easter Sunday.
  7. As it currently stands, Plaintiff Philip Paulson (Paulson v. City of San Diego) claimed, and the courts have consistently agreed, that the Mt. Soledad Easter Cross fosters an excessive entanglement by government with religion. In 1916 by Ordinance No. 6670, the Mt. Soledad Natural Park became dedicated city owned parkland. The Mt. Soledad Natural Park was dedicated and intended to be enjoyed by all citizens as a public park. The argument of Paulson and others is that if the City decides to honor veterans with a memorial, then an inclusive veterans memorial ought to display a secular design that is strictly "religiously neutral" to honor veterans of all faiths, and also those with no religious faith. – [The "Lemon Test" pursuant to US Supreme Court ruling in Lemon v. Kurtzman, 403 U.S. 602 (1971) required government to remain "religiously neutral" with respect to religion.[5] To be constitutional, a statute must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion."]

1989–1991

The City of San Diego was the target of a lawsuit on May 31, 1989 charging that the presence of the cross violated the California Constitution and the first amendment of the United States Constitution relating to separation of church and state in the United States. On December 3, 1991, Gordon Thompson, Jr., a judge for the United States District Court for the Southern District of California, ruled in favor of the plaintiff, Philip K. Paulson, resident of San Diego and a Vietnam War veteran, noting that the cross was permanently positioned inside a public park and was maintained at taxpayers' expense. He further noted that it violated Article 1, Section 4 of the California Constitution, which is known as the "No Preference" Clause.[6]

Article 1, Section 4 of the California State Constitution: subtitled "Liberty of Conscience." California state, municipal and special units of government are instructed by this "No Preference Clause" from discriminating or preferring one religion over another.

"Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion. A person is not incompetent to be a witness or juror because of his or her opinions on religious beliefs."[7]

Article XVI, section 5 of the California State Constitution: State, County and local units of government can not use tax money or grant property to aid of any religious sect, church, creed, or sectarian purpose.

"Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the State, or any city, city and county, town, or other municipal corporation for any religious creed, church, or sectarian purpose whatever; provided, that nothing in this section shall prevent the Legislature granting aid pursuant to Section 3 of Article XVI."'[8]

1992–1993

On June 2, 1992, San Diego voters approved Proposition F, which allowed transfer of a portion of Mt. Soledad Natural Park to a non-profit corporation for maintenance of a historic war memorial.[citation needed] In 1993, the city appealed the 1991 District Court decision (permanent injunction forbidding the permanent presence of the cross on publicly owned land) to the Ninth Circuit Court of Appeals, which upheld the District Court injunction, holding that the mere designation of the cross as a war memorial was not enough to satisfy the separationist No Preference Clause of the California Constitution.[citation needed] The Ninth Circuit Appellate Court held that "highly visible, religiously significant Easter crosses, erected in public parks owned and maintained by local government, in the absence of any symbols of other religions, and without any independent historical significance, violated the 'No Preference' Clause of the California Constitution".[6] The City and County of San Diego petitioned and were granted a hearing en banc (a vote by the entire 28 judges of the court). They lost by a unanimous vote by all 28 judges.[6]

1994

In response to the injunction, in 1994, the city sold 224 square feet (21 m2) of land at the base of the cross for $24,000 to the Mount Soledad Association.[9] At that time, the city did not solicit or consider any bids or offers from other prospective buyers of this land and the Association clearly stated its intention to keep the cross as part of its proposed war memorial.[citation needed]

On October 10, 1994, the City and County of San Diego then petitioned the US Supreme Court with a Writ of Certiorari;[6] the Supreme Court refused to hear the appeal.[10]

1997

On September 18, 1997, Judge Thompson ruled that both the negotiated sale of the cross site to the Mount Soledad Memorial Association and the size for the plot sold to the Mount Soledad Memorial Association violated two separate provisions of the California Constitution. Judge Thompson wrote, "it is the exclusion of any other purchasers of or bidders for the land that gives the appearance of preferring the Christian religion that the California Constitution forbids." Judge Thompson also wrote that "the City’s attempt to comply with this Court’s order by selling only a small portion of the land underneath the Mount Soledad cross still shows a preference or aid to the Christian religion."[6] Judge Thompson added, "Both the method of sale and the amount of land sold underneath the Mount Soledad cross do not cure the constitutional infirmities outlined in this Court’s previous Order."[citation needed] (referring to the December 3, 1991 order stating "a permanent injunction forbidding the permanent presence" of the Mount Soledad cross on public property.[6] Judge Thompson again gave the City of San Diego another 30 days to remove the cross).[6]

1998–2001

The City attempted to sell the land to a private group again in 1998. Five bids were submitted; the bid from the Mount Soledad Memorial Association (the highest) was accepted[citation needed] and a half-acre of land around the cross was sold to the Association for $106,000.[9] In a decision issued on February 3, 2000, Judge Thompson upheld the transfer. However, in a 7–4 decision,[11] the appellate court Ninth Circuit Court of Appeals found that the City's sale of the cross to the Mount Soledad Memorial Association violated Article XVI, section 5, of the California Constitution, which prohibits government from affording any financial advantage or subsidy to religion.[11]

2002–2003

The City and the Mount Soledad Memorial Association petitioned the Court for reconsideration and/or rehearing, which was denied on October 22, 2002. The City thereafter sought review of the en banc decision by the United States Supreme Court. On April 21, 2003, the Supreme Court denied defendants' petitions for review.[12]

Plaintiff Paulson and defendant Mount Soledad Memorial Association agreed to a settlement that called for removal of the cross in exchange for which the Association would gain ownership of the property. The other defendant, the City of San Diego, never agreed to the settlement. While the cross and land were apparently owned by the Association (after the 1998 sale), the Association spent over $900,000 to add significant improvements to the memorial site, including six concentric granite wall, pavers, bollards, and a flagpole with American flag. Additionally, the Association sold over 1,600 plaques memorializing individual service men and women. The original, unadorned cross eventually became encircled by several walls of plaques.[13]

2004

Peters Resolution agrees to the signing of the Settlement Agreement

On July 27, 2004, the City Council took up the motion by Councilmember Scott Peters: "Should voters reject the proposal (Proposition K), City Attorney shall enter into the settlement agreement now with Mt. Soledad Memorial Association and Plaintiffs."

(City Council Motion Passes: 5 Yeas, 3 Nays, 1 absent)[14]

Voters Reject San Diego City Proposition K

Proposition K: City of San Diego seeks authorization to sell portion of Mount Soledad to the Highest Bidder.

(Proposition K Fails: No votes totaled 256,745 or 59.18%, Yes votes totaled 177,062 or 40.82%). [15]

In November 2004, voters rejected a ballot measure to authorize a third sale of the land. Thus, pursuant to the Peters Agreement the City of San Diego is obligated under the legally binding terms of the Council Resolution (that was moved, seconded and passed) to remove the cross from the Mt. Soledad Natural Park. Although, the City of San Diego has not as yet signed the Settlement Agreement, contract law obligates the City to do so.

Plaque at the base of the cross

On December 8, 2004, Section 116 of Public Law 108-447 [16] designated the Memorial as a national veterans memorial national memorial, authorized the United States Department of the Interior to=January accept a donation of the memorial from the City, and directed the National Park Service to work with the Mount Soledad Memorial Association in the administration and maintenance of the memorial. This veterans memorial designation was added by Congressmen Randy "Duke" Cunningham (R) and Duncan Hunter (R), both of whom represented portions of San Diego County, as a rider to a voluminous spending bill approved in November 2004 by the United States Congress.[13] Under the bill, the site would become part of the National Park Service but would be maintained by the Mount Soledad Memorial Association.[13]

2005

On March 8, 2005 the San Diego City Council voted against a proposal to transfer the land to the National Park Service, a move which proponents believed might avoid the court-ordered removal of the cross. Opponents claimed this would merely shift the church-state issue to federal jurisdiction and would only delay the eventual removal of the cross. The City Council declined the offer of the Federal Government to accept the transfer of the Mt. Soledad Memorial property. (Council Motion Passes: 5 Yeas, 3 Nays, 1 Absent)

Grassroots opposition to the City Council's action resulted in a referendary petition, signed by over 100,000 County of San Diego residents, calling on the Council to reverse its decision against donating the property. On May 16, 2005, the Council reconsidered its decision to transfer the land at the request of those petitioners, and, after rejecting a proposal to directly donate the land to the Federal government in a 5–4 vote, the Council voted 6–3 to include a ballot measure in the upcoming special Mayoral election to be held July 26 which would allow the voters of San Diego ballot item (PDF) to approve the donation.

On July 26, 2005, the ballot measure to transfer the property to the Interior Department as a veterans memorial received votes exceeding the two-thirds threshold required to pass. Voters Pass Prop A: "Shall the City of San Diego donate to the federal government all of the City's rights, title, and interest in the Mt. Soledad Veterans Memorial property for the federal government's use of the property as a national memorial honoring veterans of the United States Armed Forces?" (Proposition A Passes: Yes votes totaled 197,125 or 75.96% and the No votes totaled 62,373 or 24.04%). However, the plaintiff in the federal court case filed a case in California Superior Court challenging the constitutionality of the proposition.

Mount Soledad Easter Cross

On September 3, Superior Court Judge Patricia Yim Cowett issued a temporary restraining order barring the transfer until the issue was settled. Lawyers on each side presented their arguments on October 3, 2005. A key issue was the status of the area as a secular war memorial, given the fact that it was not developed as a memorial until ten years after the first lawsuit. Prior to the lawsuit, no plaque or marker designated or explained the site's status as a war memorial, and during the fifty years prior to the law suit, there were no ceremonies or recognitions of the Korean War or to war veterans at the site, only Easter Sunday services. A 1985 map of the "San Diego Area" identifies the cross as the Mt. Soledad Easter Cross.[17] A court document also refers to several references of the Easter Cross including, "...the U.S. Department of Commerce Coast and Geodetic Survey (indicating "Easter Cross" on chart)."[18]

The plaintiff argued that the ballot measure was unconstitutional because it resulted in an unconstitutional act—transferring the property to the federal government for the purpose of keeping the cross in its present location on public parkland, a purely religious symbol of one faith. The City argued that the purpose of the ballot measure was to determine the will of the people of San Diego with respect to the federal government's offer to accept a donation of the property. The private citizens' group which had sponsored the petition leading to ballot measure argued that display of the cross was not unconstitutional because the many significant improvements added to it removed any doubt that it is a genuine veterans memorial.

On October 7, 2005, Judge Cowett found the ballot measure unconstitutional. Her ruling stated: "Maintenance of this Latin Cross as it is on the property in question, is found to be an unconstitutional preference of religion in violation of Article I, Section 4, of the California Constitution, and the transfer of the memorial with the cross as its centerpiece to the federal government to save the cross as it is, where it is, is an unconstitutional aid to religion in violation of Article XVI, Section 5, of the California Constitution."

In December 2005 Philip Paulson's lawyer James McElroy asked a San Diego Superior Court judge to order the city of San Diego to pay his legal fees for the October victory.

2006

On January 13, 2006, Judge Cowett ruled that the city must pay for McElroy's fees, but exactly how much is yet to be determined. The city plans to appeal.[19]

A section of the memorial wall at Mount Soledad

On May 3, 2006, US District Court Judge Gordon Thompson Jr. issued an order for removal of the cross, pursuant to the permanent injunction levied by the court, within 90 days, or the city of San Diego will be fined $5,000 a day. Judge Thompson Jr. declared that "It is now time, and perhaps long overdue, for this Court to enforce its initial permanent injunction forbidding the presence of the Mount Soledad Cross on City property."[20][21] The current mayor, Jerry Sanders, says he plans on proposing an appeal to the decision by Judge Thompson. Sanders pointed out that over 75% of San Diego voters believe the cross should remain in place, as evidenced by the votes in favor of transferring the memorial property to the federal government. The head of the Mount Soledad Memorial Association, the private organization that operates the memorial, hopes that the cross will be taken down and moved to a nearby private property.[22]

On May 11, 2006, Karen Kucher of the San Diego Union-Tribune reported: "Mayor Jerry Sanders on Thursday sought presidential intervention in the legal battle over the Mount Soledad cross, asking President Bush to use the power of eminent domain to take the city-owned property in La Jolla on which the memorial and cross sit. Sanders warned of the “uncertain future” of the monument and said he fully supported the federal government condemning the property to save the cross, a request first made late Wednesday by Rep. Duncan Hunter, R-Alpine. ... City Attorney Michael Aguirre weighed in on the issue Thursday afternoon – several hours after the mayor's press conference – and he questioned whether the request for federal condemnation of the property violated an existing judicial order. “Such a move may be viewed by the San Diego Superior and United State District courts as being in violation of existing judicial orders and could result in a contempt finding and or sanctions against the city of San Diego,” Aguirre said in a statement."[23]

On May 23, 2006, the San Diego City Council voted 5–3 to appeal U.S. District Judge Gordon Thompson Jr.'s May 3 order to remove the cross.[24]

On June 2, 2006, Mayor Jerry Sanders announced that the city had filed an appeal of Judge Thomson's order to remove the cross. The city also asked that the appeal be ruled on by July 8. Sanders said that if the appeal was not granted then the city would comply with the order.[25]

On June 21, 2006, a three-judge panel of the 9th U.S. Circuit Court of Appeals declined to step in and suspend the $5,000 daily fine that will be imposed on the city if the cross isn't removed from city property by August 1[26]

On June 26, 2006, San Diego County Congressmen Rep. Duncan Hunter (R-52nd), Rep. Brian Bilbray (R-50th) and Rep. Darrell Issa (R-49th) introduced House Report Bill 5683,[27] a bill to preserve the Mt. Soledad Veterans Memorial in San Diego, California, by providing for the immediate acquisition of the memorial by the United States.

On July 3, 2006, Supreme Court Justice Anthony M. Kennedy issued a temporary stay in favor of the city and the cross's supporters to allow time for further appeals. However, Justice Anthony Kennedy was a swing vote on a related secular ruling in Lee v. Weisman,[28] and his stay order does not indicate a particular bias in favor or opposition to the cross case.

On July 7, 2006, Supreme Court Justice Anthony M. Kennedy, in a 4-page decision, granted the city of San Diego's request for a stay pending a ruling on the city's appeal.[29]

On July 19, 2006, House Report Bill 5683,[27] a bill to transfer the Mount Soledad Cross to the federal government passed in the House of Representatives by a vote of 349–74.[30] Sen. Jeff Sessions, (R-Ala.), introduced identical legislation in the Senate that would allow the federal government to take the Mt. Soledad property by eminent domain. President George W. Bush, on the day of the vote, issued a "Statement of Administration Policy" that "strongly" supported H.R. 5683. The Statement read, in part, "In the face of legal action threatening the continued existence of the current Memorial, the people of San Diego have clearly expressed their desire to keep the Mt. Soledad Veterans Memorial in its present form. Judicial activism should not stand in the way of the people, and the Administration commends Rep. Hunter for his efforts in introducing this bill."

On August 1, 2006, the US Senate approved (through procedural "unanimous consent"; not a recorded vote) an eminent domain plan to transfer a Latin Cross and the land underneath it to federal control in an effort to avoid a court-ordered removal of the cross that stands on Mt. Soledad Natural Park.[31] The Plaintiff in this cross case seeks a court ordered injunction and stay by stopping the transfer until all of the legal issues have been adjudicated in the courts as well as alleging an abuse of power in exercising eminent domain.

On August 11, 2006, Steve Trunk, who is a San Diego resident, veteran, and atheist, was named and added as a Plaintiff to the old and a newly filed lawsuit. U.S. District Court Judge Barry Moskowitz heard Plaintiffs Paulson and Trunk argue the case of the federal involvement in the ownership of a Christian cross.[32] Judge Moskowitz will rule if the federal land transfer is unconstitutional and if the presence of the cross on federal land is unconstitutional. The Plaintiffs have a preliminary restraining order before Judge Moskowitz, which would make the transfer null and void (ab initio). Plaintiffs' Attorney James McElroy [33] accused the federal officials of using eminent domain in bad faith and with the sole purpose to keep the Mt. Soledad Easter Cross on a public park. "These people are sworn to uphold the constitution," McElroy said. "The president has no respect for the law. To do this now with two appeals pending shows disrespect for the court system. There's no reason they couldn't have waited for the appellate courts to decide this."[34]

On August 14, 2006, President George W. Bush signed into law Bill HR 5683 that would transfer City of San Diego property from Mt. Soledad Natural Park along with a Latin Cross to the federal government by applying the powers of eminent domain.

On August 21, 2006, the American Civil Liberties Union representing the Jewish War Veterans of the United States of America filed a separate lawsuit against the U.S. government and Defense Secretary Donald Rumsfeld, charging that the continued display of the Mt. Soledad Latin cross on federally owned land unlawfully entangles government with religion and asks the Court to rule the 29-foot (9 m) tall display be removed from Mt. Soledad Natural Park.[35]

Sign at the entrance to Mount Soledad

On September 22, 2006, U.S. District Court Judge Barry Ted Moskowitz consolidated two separate cases that challenged the constitutionality of a Latin cross on government land atop Mount Soledad, involving a transfer to the US Department of Defense. The consolidated cases involved Philip Paulson and Steven Trunk and the other case was filed by the American Civil Liberties Union, which is representing the Jewish War Veterans, a Muslim, and several San Diego citizens. The 17-year original case brought by Philip Paulson versus City of San Diego is still pending with US District Court Judge Gordon Thompson Jr. and also pending in the California State Courts, too.[36]

On October 25, 2006, Philip K. Paulson, the original plaintiff in the 1989 lawsuit challenging the legality of the cross, died of liver cancer at the age of 59.[37]

On November 30, 2006, the 4th District Court of Appeal overturned the October 7, 2005 decision by Superior Court Judge Patricia Yim Cowett that invalidated a voter-approved 2005 measure which authorized transferring land underneath the Mount Soledad cross to the federal government, thus declaring that the measure was constitutional.[38] If the latest challenges to the move of the cross to federal jurisdiction fail, then this decision will be rendered moot. But if the move is reversed by federal court, then the validity of the measure will be relevant. The appeals court didn't address the issue whether the actual presence of the cross on federal land violates the state or federal constitution.

2007

February 21, 2007 the California Supreme Court, affirmed the precedent-setting decision of the California 4th District appellate court, which upheld the right of the people of San Diego to transfer the Mt. Soledad veterans memorial to the federal government. At the same time, the Court denied the plaintiffs' objection to publication of the lower court decision favorable to the cross and veterans memorial. Unpublished decisions are non-precedential.

October 12, 2007 the ACLU of San Diego & Imperial Counties on behalf of the Jewish War Veterans of the United States, Richard A. Smith, Mina Sagheb, and Judith M. Copeland, filed a motion for Summary Judgement with the Southern District Court of California. The motion requests the immediate removal of the cross for the reasons noted: the Federal Government’s actions with respect to the cross have the effect of advancing or endorsing a religion; the Federal taking and display of the Mt. Soledad cross lacks a valid secular purpose; and finally, the Federal Government’s display of the cross creates an excessive entanglement with a religion.[39]

A federal court judge on November 8, 2007 dismissed the lawsuit filed against the City of San Diego involving the Mt. Soledad Veterans War Memorial. The Federal government had acquired the memorial property from the City via eminent domain on August 14, 2006. In dismissing the lawsuit against the City, the federal court agreed that the City should be dismissed from the lawsuit because the federal government owns the memorial property. Now that the City has been dismissed from the lawsuit, the lawsuit will proceed only against the federal government.[40]

2008

On February 25, 2008 after both parties filed cross motions for summary judgment, the court was scheduled to hear arguments.

On July 31, 2008, U.S. Federal Judge Larry Alan Burns ruled that the cross could remain, writing, "The Court finds the memorial at Mt. Soledad, including its Latin cross, communicates the primarily non-religious messages of military service, death and sacrifice. As such, despite its location on public land, the memorial is Constitutional." The matter is currently on appeal to the Ninth Circuit Court of Appeals, Nos. 08-56415 and 08-56436.

2009

The two matters on appeal, Ninth Circuit Court of Appeals, Nos. 08-56415 and 08-56436, were argued on the morning of December 9, 2009.[41][42]

2011

In January 2011, the United States Court of Appeals for the Ninth Circuit ruled[43] the cross unconstitutional. Judge McKeown wrote for the court, "Overall, a reasonable observer viewing the Memorial would be confronted with an initial dedication for religious purposes, its long history of religious use, widespread public recognition of the Cross as a Christian symbol, and the history of religious discrimination in La Jolla."[44] CNN says the case is expected to be appealed to the Supreme Court.[45]

References

  1. ^ Randal C. Archibold, High on a Hill Above San Diego, a Church-State Fight Plays Out, The New York Times, October 1, 2005, p. 9.
  2. ^ Haney, Lynn (2005). Gregory Peck: A Charmed Life. De Capo Press. pp. 44–45. ISBN 0786716568. http://books.google.com/?id=3oQU10DmZXMC&printsec=frontcover&dq=gregory+peck:+a+charmed+life#v=onepage&q=black%20family%20rented%20a%20house&f=false. Retrieved January 10, 2011. "In 1923, when a black family rented a house on the outskirts of town, the Ku Klux Klan burned a cross on Mt Soledad... Started after the Civil War, the KKK experienced resurgence in the 1920s. Members of the terrorist KKK presented themselves as defenders of the white against the black, of Gentile against Jew, and of Protestant against Catholic. They thus traded on the newly inflamed fears of credulous small-towners in places like La Jolla. Their message appealed to ordinary men with an infantile love of hocus-pocus and a lust for secret adventure. By setting cross ablaze in the night, they aroused fears of burning houses, beatings and sometimes lynching." 
  3. ^ adherents.com. "The Religious Affiliation of Director D. W. Griffith". http://www.adherents.com/people/pg/DW_Griffith.html. Retrieved 9 January 2011. "From: Lynn Haney, Gregory Peck: A Charmed Life, Carroll & Graf Publishers: New York, NY (2003), pages 44-45" 
  4. ^ "About the Memorial". Mt. Soledad Veterans Memorial. 2004. http://www.soledadmemorial.com/web/pages/about_the_memorial.htm. Retrieved 2011-01-05. 
  5. ^ "Lemon v. Kurtzman, 403 U.S. 602". http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=403&invol=602. 
  6. ^ a b c d e f g [1]
  7. ^ "Article 1, California constitution". http://www.leginfo.ca.gov/.const/.article_1. 
  8. ^ "Article 16, California constitution". http://www.leginfo.ca.gov/.const/.article_16. 
  9. ^ a b Ray Huard, Mt. Soledad cross case seems settled: A plan to move it gets tentative OK, San Diego Union-Tribune, March 31, 2004
  10. ^ Marisa Taylor and Ray Huard, Mount Soledad cross case turned down: Ruling against city is 2nd in 14 years, San Diego Union-Tribune, April 22, 2003
  11. ^ a b City of San Diego, City Attorney Report
  12. ^ ACLU, The Mt. Soledad Latin Cross, http://www.aclu.org/religion/govtfunding/26524res20060824.html
  13. ^ a b c Edds, Kimberly (December 6, 2004). "In Calif., Cross Site Stirs Discord: Church-State Separation Is Issue at Mount Soledad Memorial". Washington Post: p. A19. http://www.washingtonpost.com/wp-dyn/articles/A38045-2004Dec5.html. 
  14. ^ Hall, Matthew T.. (2004-07-28) New Mt. Soledad sale up to voters|The San Diego Union-Tribune. Signonsandiego.com. Retrieved on 2011-01-07.
  15. ^ Proposition K: Sale of a Portion of Mount Soledad Park – San Diego County, CA. Smartvoter.org. Retrieved on 2011-01-07.
  16. ^ Public Law 108-447. 108th Congress
  17. ^ "San Diego Area," American Automobile Association (1985).
  18. ^ Judge Patricia Cowett (2005-10-07). "Philip Paulson, Petitioner vs. Charles Abdelnour, in his capacity as City Clerk of the City of San Diego, et al.". GIC 849667. Superior Court of California, County of San Diego. http://www.signonsandiego.com/news/metro/images/051007soledadruling.pdf. Retrieved 2006-05-22. 
  19. ^ Angelica Martinez, "Judge rules city must pay Soledad cross legal fees", San Diego Union-Tribune, January 13, 2006
  20. ^ Onell R. Soto, City has 90 days to remove Mt. Soledad cross, The San Diego Union-Tribune, May 4, 2006, p. A1.
  21. ^ Judge orders San Diego cross removed. Wnd.com. Retrieved on 2011-01-07.
  22. ^ Onell R. Soto (May 4, 2006). "San Diego has 90 days to remove Mt. Soledad cross". San Diego Union-Tribune. http://www.signonsandiego.com/news/metro/20060504-9999-1n4soledad.html. Retrieved 2009-03-03. 
  23. ^ Karen Kucher, Bush asked to intervene in cross battle, San Diego Union-Tribune, 1:06 p.m. May 11, 2006
  24. ^ Craig Gustafson, "S.D. plans to battle cross ruling", San Diego Union-Tribune, May 24, 2006
  25. ^ Angelica Martinez, "City appeals judge's cross ruling, seeks delay in fines", San Diego Union-Tribune, June 2, 2006
  26. ^ Onell R. Soto and Craig Gustafson, "Latest bid in battle for cross is rejected", San Diego Union-Tribune, June 22, 2006
  27. ^ a b H.R. 5683
  28. ^ "Lee v Weisman commentary". Rothberger Johnson & Lyons Religious Liberty Archive. http://www.churchstatelaw.com/commentaries/leevweisman.asp. Retrieved 2009-03-03. 
  29. ^ "Kennedy on 20A". scotusblog. http://www.scotusblog.com/movabletype/archives/Kennedy%20on%20A-1234.pdf. 
  30. ^ H.R. 5683 Roll Call
  31. ^ Dana Wilkie, Copley News Service, Senate votes to put Mount Soledad cross in federal hands
  32. ^ "Another Judge's Cross to Bear". Voice of San Diego. September 11, 2006. http://www.voiceofsandiego.org/news/article_c0551f94-a8c5-5fb9-bf06-bb8d293908da.html. 
  33. ^ Biography of James McElroy
  34. ^ "Council: We Support the Cross". Voice of San Diego. May 24, 2006. http://www.voiceofsandiego.org/news/article_9cfadf73-fd70-536d-a5a2-d82f693b1650.html. 
  35. ^ ACLU press release, ACLU Represents Jewish War Veterans and San Diego Residents in Effort to Relocate Mt. Soledad Memorial
  36. ^ "Cases Consolidated". Voice of San Diego. September 22, 2006. http://www.voiceofsandiego.org/articles/2006/09/22/this_just_in/430soledad.txt. Retrieved 2009-03-03. 
  37. ^ Kelly Thornton, "Philip Paulson, who filed suit to remove Mount Soledad cross, dies at 59", San Diego Union-Tribune, October 25, 2006
  38. ^ Appeals court says cross on federal land is unconstitutional, CNN, January 5, 2011
  39. ^ "Ending Government Sponsorship of the Mt. Soledad Cross". ACLU San Diego. http://www.aclusandiego.org/legal_item.php?cat_id_sel=003&sub_cat_sel=000016&article_id=000319. 
  40. ^ San Diego City Attorney Michael J. Aguirre (November 8, 2007). "Federal Court dismisses lawsuit against City of San Diego". http://www.blogofsandiego.com/Breaking-News/NRCitydismissedMtSoledad11.8.07.pdf. Retrieved 2009-03-03. 
  41. ^ 9th Circuit Appeal – Dkt 38 – Notice of Oral Argument
  42. ^ Audio of Oral Arguments in Jewish War Veterans of the United States v. City of San Diego, No. 08-56415
  43. ^ UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 08-56415
  44. ^ "Opinion by Judge McKeown, No. 08-56415: Steve Trunk and Jewish War Veterans of the United States of America, Inc.; Richard A. Smith; Mina Sagheb; Judith M. Copeland v. City of San Diego and Robert M. Gates". United States Court of Appeals for the Ninth Circuit. January 4, 2011. p. 219. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/04/08-56415.pdf. Retrieved February 1, 2011. 
  45. ^ "Appeals court says cross on federal land is unconstitutional". Cable News Network (CNN) (Time Warner). January 5, 2011. http://www.cnn.com/2011/US/01/04/california.cross/index.html. Retrieved January 26, 2010. 

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