July 31, 2008

Federal judge says cross can remain on San Diego's Mt. Soledad

ACLU says opponents may appeal the decision. The symbol is part of a federally owned war memorial

The cross atop Mt. Soledad in San Diego has been the subject of controversy for years. Groups advocating a separation of church and state have sought the removal of the cross, saying it's unconstitutional to have a religious symbol on public land. A federal judge has ruled that the cross can remain. Mark Boster / Los Angeles Times

By Jia-Rui Chong
Los Angeles Times

A controversial cross on Mt. Soledad in San Diego can stay as part of a federally owned war memorial, a federal judge ruled.

"The court finds the memorial at Mt. Soledad, including its Latin cross, communicates the primarily nonreligious messages of military service, death and sacrifice," wrote U.S. District Judge Larry Alan Burns in his decision filed Tuesday. "As such, despite its location on public land, the memorial is constitutional."

An official with the American Civil Liberties Union, which represents several of the plaintiffs in the case, including the Jewish War Veterans of the United States of America, voiced disappointment in the decision. Lawyers for the group had contended that including the cross in a government park violated the principle of the separation of church and state.

"If you want to put a cross on your front lawn . . . we will be the first to defend you," said David Blair-Loy, legal director of the ACLU of San Diego and Imperial Counties. "When the government is sponsoring and endorsing the preeminent symbol of one religion, that's when we have a problem."

He said his side is discussing further legal action. An appeal to the U.S. 9th Circuit Court of Appeals is "clearly on the table," Blair-Loy said.

William J. Kellogg, president of the Mount Soledad Memorial Assn. and grandson of one of the American Legion members who dedicated the cross in 1954, was pleased with the verdict. The association was not named in the lawsuit, but did not want the cross removed.

"The decision was based on the fact that it is clear it is a veterans memorial," Kellogg said. "That's what our association is all about." A cross has marked Mt. Soledad since about 1913, and the current concrete cross was dedicated in 1954 in memory of Korean War veterans, Kellogg said.

The lawsuits surrounding the cross began in the late 1980s when Philip Paulson, an atheist and Vietnam War veteran, sued the city of San Diego, which owned the Mt. Soledad property. In 2006, Congress passed a law taking the cross and the land on which it sits and giving it to the Department of Defense.

In his ruling Burns agreed that the cross is the preeminent symbol of Christianity, but said "it does not follow the cross has no other meaning or significance." He pointed to the exhibits on public beaches, such as Santa Monica's, where the group Veterans for Peace uses crosses in the sand to represent U.S. service members who died in Iraq.

The cross is also displayed "along with numerous purely secular symbols in an overall context that reinforces its secular message," the judge said.

Although walls with other religious symbols, such as the Star of David, have been added to the Mt. Soledad display, they are dwarfed by the large cross, Blair-Loy said. "It is a 43-foot cross on one of the highest points in San Diego," he said. "If the cross is not a religious symbol, I don't know what is."