Mt. Soledad cross unconstitutional but can stay, says ruling

No view in La Jolla is better than the one from the top of Mount Soledad. Photo: Christine Hill

By Dave Schwab
Staff Writer

The 43-foot cross atop Mount Soledad is unconstitutional, but that doesn’t mean it has to be taken down, according to a federal appeals court ruling handed down Tuesday.

A three-judge panel of the 9th Circuit Court of Appeals reversed a 2008 decision by U.S. District Judge Larry Burns, who ruled in a lawsuit brought by Jewish veterans that the cross is part of a larger war memorial honoring all veterans and serves as a secular symbol of service.

Justice M. Margaret McKeown, who penned the 50-page ruling, said the way the Mount Soledad Memorial is currently configured “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.”

Reacting to the court decision, attorney Jim McElroy representing Steven Trunk, who supplanted the late Philip Paulson who initially challenged the Soledad cross’s existence on public land 21 years ago, hailed Tuesday’s decision as a “good day for the Constitution and a good day for religious tolerance.”

“It unequivocally states the cross on federal land is unconstitutional,” McElroy said adding what is especially significant about this ruling is that “there is no other case that involves a 40-foot-high, 20-ton cross that predominates something whose purpose is to be a veteran’s memorial that was once a stand-alone cross.

“This is a huge symbol that says we’re honoring Christian veterans, not non-Christian veterans.” McElroy said.

Bill Kellogg, chairman/CEO of the Mt. Soledad Memorial Association which built the cross in 1952 as a Korean War memorial, said the ruling is “really complicated and sort of throws everything on its ear.”

Kellogg said the Ninth Circuit’s decision tends to reverse the previous legal direction of the court, which was to allow the cross to stay. He said the court’s decision won’t change the association’s mission, or its holding of commemorative services for veterans on site.

“Since the cross site is now owned by the federal government, it’s a federal case and up to them to decide whether to appeal it to the U.S. Supreme Court,” Kellogg said.

Charles LiMandri, an attorney for the Thomas More Law Center, a not-for-profit public interest law firm defending the religious freedom of Christians, family values and the sanctity of human life, took issue with the court’s statement that the Soledad cross could remain if it were modified somehow to make it less religious.

“I think it would be offensive to people to modify it to make it something other than a cross,” LiMandri said. “You shouldn’t profane a symbol that has religious connotations to make it secular. That’s almost worse than removing it.”

LiMandri claims the Soledad cross is “a multifaceted, fully integrated, world-class war memorial with a symbol legitimately being used for a predominantly secular purpose.”

The Mount Soledad Memorial has been the subject of ongoing litigation for more than two decades.

In 1989, two Vietnam veterans sued the city of San Diego, seeking to enjoin it from allowing the cross to remain on city land.

The land the cross sits on has been under the control of the federal government since 2006, when Congress passed a law allowing seizure of the land for use as a war memorial.

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Posted by Dave Schwab on Jan 4, 2011. Filed under Featured Story, La Jolla, News. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

5 Comments for “Mt. Soledad cross unconstitutional but can stay, says ruling”

  1. Rick Paulson

    I just don't understand people who come to an area and say something is offensive, much like someone who move's next to an airport and complain about jet noise, nor do i see or hear people going to other countries and saying there monument is offensive. Freedom of religion is a part of this country is it not, and i believe we are one nation under God. and not a God that tells people to strap bombs to them selfs to blow people up to get the point across I believe ours is to love they neighbor. If people want to complain about offensive listen to lyric from todays modern music, and listen to some slander about our great country,

  2. Peter Mahoney

    That christian cross is an INSULT to our veterans who are of other faiths (jews, muslims, hindus, buddhists, etc), or veterans of no faith at all (atheists like Pat Tilllman, etc.). It is also an insult to christian veterans who gave their lives for a country that is supposed to be inclusive of citizens of ALL religions (and those with no supernatural beliefs at all).

    This is America. We should honor ALL of our veterans, not just the christian ones. To have a huge cross as the veterans memorial is a slap in the face to MANY, many veterans.

    • Paula Skinner

      I was born in La Jolla in 1956 and love people of all races, religions, colors, rich & poor, all over the world, and I cannot understand people who get caught up in the glass in half empty, not half full. There are all kinds of memorials, symbols and religious buildings around the world that honor every walk of life… why can't you just appreciate this one for what it honors and the ones that support your beliefs for what they honor. I DO!!! FOCUS ON THE GOOD IN THE WORLD AND QUIT FOCUSING ON THE BAD! QUIT GETTING CAUGHT UP IN TAKING DOWN THE CROSS. GOD BLESS AMERICA AND THE WORLD WE LIVE IN, AND PRAY, IN WHATEVER SPIRITUAL WAY YOU DO, FOR WORLD PEACE.

  3. Mariam Hanna

    The cross is a symbol of love, peace and salvation in Christian history. It is not offensive in any sense to anyone. If anything, it is the OPPOSITE of what Peter Mahoney is saying. I have never heard of offending an atheist. An atheist does not believe in anything, so how can you offend them? People….. smarten up…. this country has allowed you all freedom of expression. Why is it that we are taking that freedom away from the very people who founded this country, the Christians? Have some respect for those who have written the consititutions that you all enjoy today.

  4. Brianna Ehrhart

    The war memorial was added to the cross to make a good thing better. You try and do good, and all people want to do is complain. Correct me if I'm wrong, but are only family members of Christian soldiers allowed to display memorial plaques there? No. No single religion is discriminated against, or prevented from being represented on the plaques. How is that an insult to non-Christian veterans? It is most certainly not.

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