Legal squabble over legality of Mt. Soledad cross in 22nd year

By Dave Schwab

The 22-year-old fight over the legality of a Latin cross atop Mount Soledad continues following a federal court’s Oct. 14 decision allowing a lower court’s ruling opposing the federal government’s ownership of the cross to stand.

A majority of the Ninth U.S. Circuit Court of Appeals’ 27 active judges voted not to grant en banc (multiple judge) review of a three-judge panel’s ruling in January. That decision found maintenance of the Mt. Soledad cross by the Department of Defense constitutes an unconstitutional governmental endorsement of religion.

In 2006, Congress passed legislation authorizing the federal government to acquire the Mt. Soledad land on which the cross sits by eminent domain. Two years ago, U.S. District Judge Larry Burns upheld that law, but the appellate panel disagreed.

“We won this last round,” noted Jim McElroy, the attorney representing the late Philip Paulson, a Vietnam War veteran who, in 1989, sued the city of San Diego over the cross. Paulson contended the cross’s existence excludes non-Christian veterans while violating the Constitutional separation of church and state.

But McElroy admitted the Court of Appeals’ Oct. 14 decision does little to alter the status quo.

“It was a nice victory but it doesn’t change anything,” he said. “There is only one remaining legal option — to ask the U.S. Supreme Court to hear it.”

“The federal court did not order removal of the cross, but it did remand the matter back to the trial court to take further action,” said attorney Charles Berwanger representing the Mt. Soledad Memorial Association, the La Jolla veterans group which built the 29-foot-tall cross as a Korean War memorial in 1954, about the impact of the Ninth Circuit’s decision.

Discussing the next course of action by those seeking to keep the Soledad cross in place, Berwanger said, “We will ask the U.S. Supreme Court for a stay of the Ninth U.S. Circuit Court of Appeals’ decision pending their review of our writ of certiorari (appeal to review the lower court’s ruling).”

Noting 95 percent of such writs (appeals) to the U.S. Supreme Court are denied, McElroy admitted “this case does have a long an interesting history.”

Conceding the U.S. Supreme Court of late has been weighing in more often on issues relating to separation of church and state, McElroy said, “There’s maybe a 10 or 15 percent chance the U.S. Supreme Court will take it.”

However, McElroy pointed out the process involved in the U.S. Supreme’s deciding whether to hear the Soledad cross’s appeal could take months — or years.