After nearly two decades of legal wrangling, the fate of the Mt. Soledad cross could be decided by the end of the summer-or a last-minute appeal could delay any resolution for years to come. In any event, its future is once again very much in question and the subject of great debate.
Where you fall on the issue of whether the cross should stay or go--or if it even matters--depends on your degree of religious fervor, how you feel about the separation of church and state and how strictly you interpret the fundamentals of American democracy.
With that in mind, CityBeat rolled a bit of history, expert opinion and legal and political analysis into a FAQ-that stands for “frequently asked questions” for those struggling to keep up in this modern age of anagrammatic shorthand-just in case you're still not sure what all the hubbub is about.
How did this all start?
It's a long story, filled with endless legal twist and turns, but here are the basics. In 1954, the cross was built in a city park by the Mount Soledad War Memorial Association to honor veterans of the Korean War. Nobody seems to have taken issue with the giant cross hovering above the city until 1989, when Phillip Paulson, an atheist and Vietnam veteran, filed a lawsuit claiming the religious symbol's presence on state land violated provisions of the U.S. and California constitutions prohibiting government from favoring one religion over another. Paulson won that case as well as a series of appeals and related filings that continue to play out to this day.
In the meantime, cross supporters decided that if the courts didn't like a religious symbol on city land, they would solve the problem by selling the land.
Twice the city attempted to sell the property to the Memorial Association but, despite voter approval of one of those sales, the courts deemed both transactions unconstitutional, ruling that the city unfairly favored buyers that wanted to keep the cross. The city appealed the matter all the way to the U.S. Supreme Court, which declined to hear the case, and in 2004, voters rejected a third attempt to sell the land.
That same year, Congressmen Randy Cunningham and Duncan Hunter slipped into a bill a provision that designated the memorial a national monument, allowed the federal government to accept a yet-to-be-offered donation of the land from the city and directed the National Parks Service to help maintain it.
In 2005, the City Council rejected a proposal to give the land to the federal government, and the following month supporters of the cross-fired back, launching another ballot measure, asking voters to override the City Council's decision. A month later, the City Council voted to rescind their earlier decision and let voters decide. In June, nearly 76 percent of voters approved Prop. A, and the city gave the property to the federal government. But in October, a judge ruled that the proposition and the transfer were unconstitutional. The city is appealing that decision.
Why all the recent hoopla, then?
Earlier this month, federal Judge Gordon Thompson Jr., who ruled in Paulson's initial case way back in 1991, decided he was tired of having his decision ignored and gave the city 90 days to remove the cross or face a fine of $5,000 a day. With a deadline looming and cash in short supply, city officials started scrambling to come up with a solution.
What are the underlying legal issues?
Basically, the California and U.S. constitutions prohibit the state and federal governments from favoring one religion over another. According to the courts that have ruled on the Soledad cross so far, that means local government can't make any efforts to preserve the cross. That means that the city is essentially in legal quicksand and the more officials posture, speechify or struggle to save the cross, the less likely it becomes that a judge will validate their efforts.
Is the cross a religious symbol or a war memorial?
This question has divided religious and veterans groups who both want to preserve the cross, but the answer ultimately doesn't matter. So long as city officials are attempting to protect the cross, they're violating the state constitution.
How does the California Constitution differ from the U.S. Constitution on the “not favoring one religion over another” issue?
David Steinberg, a professor at Thomas Jefferson School of Law, said that although the federal Constitution is the supreme law of the land, the state Constitution is stricter when it comes to religious symbols on public land.
“The federal courts give more weight to factors like the symbol's history and related traditions when considering whether it violates the Establishment Clause of the Constitution,” he said. “That may be significant for the Mt. Soledad cross because it's been there for a long time.”
Marilyn Ireland, a professor at California Western School of Law, explained that the federal courts have made exceptions for religious displays that are temporary or are mixed with other elements for a secular purpose.
“For example, you can have a manger scene along with Santa Claus at Christmas time, but you can't just have a manger scene,” she said, noting that history also counts in federal court. “If it's been there for a long time and nobody's complained, it might be a historic monument. The problem is it can't be for religious purposes.”
Do local religious leaders feel that the cross favors Christianity over their faiths?
This one depends on who you ask, and no one CityBeat talked to claimed to speak on behalf of everyone in their religion.
Gen Kelsang Tubpa, a resident teacher at the Vajrarupini Buddhist Center in Bankers Hill, said she doesn't feel the cross imposes anything on her, and she just chooses to ignore it.
“We are living is a Christian country, so one would expect to see crosses,” Tubpa said. “As a Buddhist, I'm really focusing on helping people develop peaceful mind and helping them control their anger.... So developing an aversion to an inanimate object like a cross is just something that we don't do,” Tubpa said. “As Buddhists, we are pledged to create peace and harmony, so therefore we wouldn't enter into a discussion of whether this is right or wrong. It actually doesn't matter, you know?”
Imam Taha Hassane, the spiritual leader at the Islamic Center of San Diego in Clairemont, said he doesn't see the cross as favoring Christianity over Islam and that the Muslim community isn't offended by its presence.
“We don't really see having a cross on a piece of land as something that gives an advantage to one religion over another,” Hassane said. “As Muslims, we don't give a lot of importance to symbols. Islam is all about the character and action. Righteousness doesn't require you to have a symbol. Righteousness should go through your behavior, your action, your interaction with others.”
Rabbi Scott Meltzer, of La Jolla's Ohr Shalom Synagogue, said the cross troubles him, and cross supporters' lack of understanding of how dangerous it is for a government to align itself with a religion irritates him.
“The inside of my cheeks are scarred from having to bite them and my tongue when people tell me that it's not a problem for there to be a cross on public lands,” he said, noting that the Soledad cross makes him feel like a second-class citizen, brings to mind past atrocities committed by pious governments and raises the potential for the stifling of religious expression.
“It doesn't create a friendly environment for me as a Jew and for people of other faiths,” Meltzer said. “Were our government to present or speak or teach Jewishly, I would be very troubled.”
Metzler said that, too often, opposition to the cross “is taken by some to be anti-Christian or even anti-American and that's tragic.... If we allow that voice to be the loudest in the debate, then we really have failed as a society and a religious society.”
So what is the City Council voting on next week?
Mayor Jerry Sanders is asking the City Council to authorize an appeal of Judge Thompson's ruling while the city pursues other legal avenues. According to CityBeat's vote count, going into Tuesday's meeting, it's a 4-3 split in favor of the appeal. Five votes are required to launch an appeal. Councilmember Ben Hueso-the swing vote-is still undecided and declining interview requests. But a conversation with City Council President Scott Peters, formerly firmly opposed to additional legal action, revealed that he may still be open-minded.
What options has the mayor proposed pursuing in the meantime?
Last week, Sanders wrote a letter to President George W. Bush asking him to follow the advice of Congressman Hunter-who also wrote Bush a letter-and use his powers of eminent domain to declare the area around the cross a national park. Sanders' hope is that by making the cross federal property, it would no longer be subject to the California Constitution, and its fate will be in the hands of the U.S. Supreme Court.
City Attorney Mike Aguirre has warned that by asking the president to intervene, Sanders may have violated Judge Thompson's previous ruling, which states that the city can't transfer the land, and could face additional penalties. Sanders' spokesperson said the mayor isn't willing to disobey Thompson's ruling or expend any money pursuing options if the City Council votes not to approve the appeal. Although the Thomas More Law Center is providing the city with pro bono legal services, Aguirre points out that the City Attorney's office is spending money on the case and said, “If we lose, which is probable, we will have to pay the [other side's] attorney's fees.”
Is it appropriate to have a Christian legal group assist the city in a separation-of-church-and-state case?
Turns out a state judge already raised that same concern, and Aguirre said the group is now acting solely in an advisory role.
Seems like there's a lot of politicking going on here. What's up?
Supporting any attempt to save the cross became a political no-brainer last year after an overwhelming majority of voters chose to give it to the federal government. Never mind that a judge declared that vote unconstitutional-politicians tend to stick with the majority.
Former Mayor Dick Murphy and City Councilmembers Jim Madaffer, Brian Maienschein and Tony Young all deserve credit for politicizing the issue. Bill Kellogg, president of the Memorial Association, told CityBeat those officials created a community divide by drawing local religious factions into the fray. He criticized Murphy for fanning those flames, at the expense of the veterans memorial, to gain reelection in 2004. With that in mind, Sanders, Aguirre and the other City Councilmembers have basically inherited the mess. That's not to say they haven't made things more difficult.
As Cal Western's Ireland put it, “What politician wants to be the mayor that tears down the cross on Mt. Soledad? They are looking for a way out to save face.”
While it remains to be seen whether Bush will get involved, stepping in could help him score points with conservative Christian types who aren't too happy with him. If that happens, or if other national politicos take up the cause, it's possible that the cross could become a national issue as the Republican Party-wounded by recent scandals-limps toward the November midterm elections.
Turning the cross into this year's Terry Schiavo spectacle may seem like long shot, but Sanders boosted the odds when he discussed the cross on Fox News' The O'Reilly Factor last week. Although the notorious O'Reilly was absent, guest host John Kasich promised Sanders that The Factor had his back. Yikes!
Can Bush actually save the cross by making it a national park?
“If the president has the power to overturn the Constitution, that will work,” said Ireland sarcastically. Cross supporters are actually hoping that if Bush makes the dispute a federal matter, the U.S. Supreme Court will hear the case.
Does anyone think that with new justices, the U.S. Supreme Court will be more favorable to the issue?
Cross supporters are hoping so, but Ireland said her analysis indicates that Samuel Alito would be the swing vote and, based on his previous rulings in lower courts, he's not likely to support keeping the cross where it is.
Steinberg, on the other hand, said he thinks the new court will be more lenient when it comes to religious-symbol cases. “I don't see Justice Roberts as being a strict separationist.... That's true of Judge Alito, as well,” he said. “So, I think you are going to see the court be more deferential on all of this.”
What happens if the Supreme Court won't hear the case?
The cross will have to be moved, and the Memorial Association is already forming a committee to select a replacement monument. But Kellogg says his group can't afford to move it, and he fears that if any city officials show any preference for relocation, a judge might order the city to dismantle it. Moreover, he's concerned that if the monument becomes federal property, his group will need congressional approval every time it wants to make changes or upgrade the monument.
“Sometimes the cure is worse than the disease,” he said.