Mt. Soledad cross advocates rally in response to pending, pro-cross legislation
By Dave Schwab and Pat Sherman
Advocates for keeping the Mt. Soledad cross in place are ramping up their efforts following passage of the War Memorial Protection Act (H.R. 290) two weeks ago in the U.S. House of Representatives.
The Liberty Institute, a Christian advocacy and legal defense organization, held a press conference Feb. 9 at Soledad Natural Park. During the event, the group announced it had filed an appeal with the U.S. Supreme Court of an appellate court ruling that declared the cross atop Mt. Soledad unconstitutional — based on the court’s view that it is a religious symbol on public land.
The land underneath the cross — part of a memorial originally dedicated in 1954 to those killed in the Korean War — has been under federal control since 2006.
Today, six memorial walls, featuring approximately 3,000 black granite plaques paying homage to veterans both living and deceased, surround the cross.
“There’s nothing wrong with this veterans memorial and this cross here,” Liberty Institute president Kelly Shackelford told the crowd, which also included those who view the cross as a preferential religious symbol and want it removed.
“If this 29-foot cross comes down, what do you do with the 24-foot cross in Arlington National Cemetery, the (Canadian) Cross of Sacrifice?” Shackelford said. “What do you do with literally every community of every state of this country that has crosses or Stars of David throughout? … The implications are huge.”
The speakers chose their words carefully, deeming the cross and memorial walls as inseparable components of a whole.
William Kellogg of the Mt. Soledad Memorial Association referred to the cross, walls, walkways and flagpole as an “integrated monument,” while Lt. Col. Jack Harkins of the San Diego County United Veterans Council, deemed them a “collective monument.”
“The original monument evokes images of the time honored tradition of erecting crosses in battlefields around the world to honor the dead,” Kellogg said. “Today there are thousands of crosses standing on the battlefields of Normandy. … Why shouldn’t there be a memorial cross in San Diego, too? This is a military city whose veterans deserve to be remembered.”
David Epstein, a retired Jewish veteran who served in the U.S. Army, said the cross should stay.
“I’ve never felt excluded because of the cross anywhere I’ve encountered it in military service,” Epstein said, evoking cheers from those who favor the landmark. “I saw that cross on the lapels of chaplains in the military, and whenever I needed to talk to somebody, whenever I needed counseling, it didn’t matter.”
Introduced by U.S. Rep. Duncan Hunter, the War Memorial Protection Act seeks to allow displays of religious symbols at military memorials and cemeteries. The bill came in response to the federal court decision a year ago that the cross was unconstitutional.
“The War Memorial Protection Act will not only protect Mt. Soledad, but every war memorial across the country,” said U.S. Rep. Brian Bilbray (R-50), whose district includes portions of La Jolla.
“For nearly a century, the Mt. Soledad Memorial has stood above our community as a beacon honoring San Diego’s veterans,” Bilbray said. “The veterans who gave their lives to protect our freedoms are a part of San Diego’s heritage; their memorials should be preserved to honor their service.”
Hunter’s bill still must pass the Senate and be signed by President Barack Obama before it becomes law — but it remains unclear whether the proposed law would pass constitutional muster.
Kellogg, of the Mt. Soledad Memorial Association, characterized Hunter’s legislation as “very appropriate.” When the federal government took control of the Mt. Soledad site, he said, “It had the intent to preserve a war memorial the way it is.”
“This legislation reinforces that,” Kellogg said.
Attorney Jim McElroy, who, for nearly a quarter century has led the battle to have the cross removed, does not share the cross proponents’ views.
“It’s really much to do about nothing,” McElroy said of Hunter’s bill, which he believes does nothing other than “codifies existing constitutional law.”
“There’s nothing unconstitutional about having religious symbols on war memorials. We have them in Arlington and various other places,” he said. “What is unconstitutional — that this statute is not going to change — is that you cannot have a war memorial that is dominated by the religious symbol of one particular sect, because it shows preference for one religion over all the others.”
“Those Jewish and non-Christian people who fought and died for our country and our freedom … didn’t fight for the cross — they fought for the American flag,” McElroy said.
Charles Berwanger, an attorney representing the Mt. Soledad Memorial Association, said there is a mid-February deadline to file an application petitioning the U.S. Supreme Court to hear an appeal of the lower court’s ruling that the cross is unconstitutional.
“If the U.S. Supreme Court denies the petition, the matter goes back to trial court,” Berwanger said. “If the Supreme Court grants the petition, both sides will brief the issue and then the Supreme Court will set the matter for oral arguments. That should be sometime toward the middle of this year.
“If the U.S. Supreme Court concludes the cross is appropriate (and) doesn’t violate the First Amendment, then I think the game is over,” Berwanger said. “The cross stays.”
Bruce Bailey, president of the Mt. Soledad Memorial Association, promised the crowd that in the coming months there will be electricity to illuminate the cross, walkways and U.S. flag at nighttime.