High court won't take up San Diego cross dispute
Jun 25, 2012 By J U L I E W A T S O N
and M A R K S H E R M A N
SAN DIEGO (AP) - The Supreme Court
won't get involved in a fight over whether a 29-foot war
memorial cross can remain on public land overlooking the
Pacific Ocean in San Diego, with justices refusing Monday to
review an appeals court ruling that deemed the Mount Soledad
cross an unconstitutional mixing of government and religion.
decision came despite the fact that the court plunged into
the dispute over the use of religious symbols to honor
fallen troops two times recently. The court has recently
signaled a greater willingness to allow religious symbols on
The current cross sits on a 14-foot base, surrounded by
walls that display more than 2,100 plaques commemorating
individual veterans and veterans groups.
Last year's ruling by the 9th Circuit U.S. Court of Appeals
that deemed the cross unconstitutional capped two decades of
legal challenges over the 1950s cross that became a memorial
to Korean War veterans.
A number of military memorials on public lands across the
country have been challenged in recent years by civil
liberty activists and atheists who say they violate the
separation between church and state.
The Supreme Court in 2010 refused to order the removal of a
congressionally endorsed war memorial cross from its
longtime home atop a remote rocky outcropping in
California's Mojave Desert. That cross was later stolen and
supporters are working on getting one restored to the spot.
The Supreme Court last year also refused to hear an appeal
of a ruling that ordered the removal of 12-foot-high crosses
along Utah highways in honor of dead state troopers.
David Loy, of the American
Civil Liberties Union in San Diego County, said the Mount
Soledad case now goes back to the U.S. District Court in
California to decide what measures should be taken to remedy
"In this case the government has no business playing
favorites with religion, thus the Supreme Court decided
properly to stay out of it," he said.
Allyson Ho, lead counsel for the co-defendant, the Mt.
Soledad Memorial Association, said her group remained
hopeful the cross would still remain in place despite
"While we are disappointed the Court did not accept this
case for review at this time, we are hopeful we can find a
solution that will allow this veterans memorial to remain
where it has stood for over half a century," she said.
Federal appeals panel blesses San Diego's sham
land sale of cross, land
By The Associated Press
SAN FRANCISCO — San Diego's sale of a 43-foot cross and a
half-acre piece of land inside a city park was
constitutional, a federal appeals court has ruled.
The controversy arose more than a decade ago, when U.S.
District Judge Gordon Thompson Jr. ruled that the city was
violating the Constitution by owning the land with the
cross. He ordered the city to sell the religious symbol.
The cross sits inside the 170-acre Mount Soledad Natural
Park on a hillside overlooking La Jolla. Opponents asserted
that the city's sale of the cross and a tiny piece of the
park was an illegal endorsement of religion — supporters
said the cross is now a memorial to war veterans.
San Diego case is good news for us,"
said Marc Slavin, a spokesman in
the San Francisco city attorney's office.
In 1998, the city sold the
cross and a half-acre of surrounding land for $106,000 to
the nonprofit Mt. Soledad Memorial Association, the same
agency that has maintained the cross since 1952.
Resident Philip Paulson objected to using the Christian
symbol as part of a war memorial and filed a lawsuit
accusing the city of violating the constitutional separation
of church and state.
Paulson claimed that the bidding process for the land was
flawed, charging that the city's requirements for the
purchase tended to favor the memorial association and that
land sold with the cross was too small.
A three-judge panel of the 9th U.S. Circuit Court of Appeals
"Because the land was legitimately sold to the private
association, we must recognize and protect the association's
rights of free exercise and free speech as the Constitution
demands no less," Judge Procter Hug Jr. wrote for the panel.
San Diego voters in 1992 passed Proposition F, which allowed
the sale of the city property. The city initially sold the
cross and 222 square feet of land to the memorial
association. But Thompson ruled that the sale required a
bidding process and that more land had to be sold.
The city then began accepting bids from nonprofit
organizations for the cross and a half-acre parcel on the
condition that any symbol could be used as long as it
honored war veterans. The highest bid came from the memorial
"If the winning bid was somebody who wanted to construct
Buddha or the Star of David, I have a feeling the city
council would have found some way not to approve of the
sale," said James McElroy, Paulson's attorney.
Yesterday's decision came a month after San Francisco
officials and a group of atheists battled in federal court
over a similar issue in Mount Davidson Park involving a
103-foot cross. A decision in that case is expected soon and
lawyers on both sides involved said yesterday's decision
could bolster San Francisco's sale.
In the San Francisco case, the city sold for $26,000 less
than half an acre at Mount Davidson Park that contained a
103-foot cross. The Council of Armenian-American
Organizations of Northern California purchased the site and
plans to use the land as a memorial to Armenians killed in
Ottoman Turkey in 1915.
Like San Diego, San Francisco sold the land after a judge
ruled city ownership was an unconstitutional endorsement of
"The San Diego case is good news for us," said Marc Slavin,
a spokesman in the San Francisco city attorney's office.