A move to save the San Diego cross

The city of San Diego and a war memorial group, seeking to keep a Christian cross on a hill — Mount Soledad — overlooking the city, have asked Supreme Court Justice Anthony M. Kennedy to block a federal judge’s order to remove the cross from the site. The cross’ presence on city-owned land has been in dispute in the federal and state courts for 17 years, with the latest appeals ongoing in California courts and the Ninth Circuit Court. A Christian cross has been on that site since 1913, with the latest version there since 1954.

Because of the length of time that the religious symbol has stood there, and because it is now surrounded by other non-religious commemorations of veterans’ service, the supporters of the cross are seeking to take advantage of the Supreme Court’s ruling last year permitting a Ten Commandments monument to remain, after years, on the grounds of the Texas state capital building amid non-religious symbols (Van Orden v. Perry). At this stage, though, the primary legal dispute centers on California, not federal, law.

The history of the legal dispute has grown very complex, so that issues under Calforrnia law are now becoming mixed with claims under the Supremacy Clause of the federal Constitution because Congress has voted to have a war memorial on the site and has agreed to let the federal government accept a donation of the site.

U.S. District Judge Gordon Thompson, Jr., in the most recent federal court order on May 3, told city officials to remove the cross within 90 days or face daily fines of $5,000; that order is designed to enforce a 1991 ruling that the cross’ location is a violation of the California constitution.

The city and the San Diegans for the Mt. Soledad National War Memorial on Thursday filed requests for a stay of the judge’s latest order (applications 05-A-1233 and 05-A-1234), while the city appeals to the Ninth Circuit and while a state appeals court is considering an appeal over the legality of a voter-approved referendum to transfer the cross site to the federal government as a national war memorial. Their requests are supported by the American Legion and by the American Center for Law and Justice, and opposed by Philip K. Paulson, a veteran and an atheist who began the court challenge to the cross in 1989.

City officials have indicated that, if their request for a delay is not granted, they will begin the process of removing the cross from the site as early as next Wednesday.