SAN DIEGO, Calif. (BP)–A California state appeals court Nov. 30 handed a victory to supporters of the Mt. Soledad cross war memorial in San Diego, ruling that a 2005 voter-approved proposition transferring the property from the city to the federal government was constitutional.
The unanimous ruling by the three-judge panel overturned a decision by a trial court judge, who last year struck down the initiative, which was known as Proposition A and passed by 76 percent of San Diego voters.
“However one characterizes the cross on Mount Soledad, as secular, sectarian or a combination thereof, its presence is an historical reality,” Associate Justice Patricia Benke wrote for the court. “It has been in place for over 50 years, since 1954. Its construction predates the first challenge to its presence by some 35 years.
“… [T]he transfer does not constitute a government preference for religion or discrimination against religion.”
The memorial, officially known as the Mount Soledad Veterans Memorial, was dedicated in 1954 as a memorial to veterans of the Korean War, although it now honors veterans of all wars and includes hundreds of black granite plaques honoring past veterans. It stands 29 feet tall, 43 feet tall including its base.
The cross has been at the center of a legal battle since 1989 when Phil Paulson, an atheist and veteran, filed suit seeking to remove the cross by arguing, among other things, that it violated the U.S. Constitution’s and California constitution’s prohibition on government-established religion. Since then, multiple appeals and additional lawsuits have been filed. Paulson died several weeks ago.
Throughout the process, supporters of the cross — including San Diego Mayor Jerry Sanders — have fought to find a way to keep the monument up.
Earlier this year President Bush signed into a law a bill transferring the property to the federal government and placing it under the authority of the Department of Defense. But that, too, is facing a legal challenge and is currently before a circuit judge in the U.S. Ninth Circuit Court of Appeals.
If the law Bush signed is upheld, then the latest ruling by the California appeals court will be moot, and the land will move to the Department of Defense. But if the law is overturned, then the victory by Mt. Soledad supporters will become even more significant. Additionally, other lawsuits are pending.
“The people spoke on this issue, and now the court has upheld their right to preserve the Mt. Soledad National War Memorial, which honors those who sacrificed themselves for our freedom,” Tim Chandler, an attorney with the Alliance Defense Fund, said in a statement. ADF and the Liberty Legal Institute filed briefs supporting the memorial on behalf of the American Legion and the American Legion Department of California. “Removal of the cross at Mt. Soledad would have no purpose other than to create heartache for the veterans’ families and comrades who cherish their memory. We, like them, are pleased with the court’s ruling.”
In her ruling Benke said Proposition A — which would have transferred the property to the National Park Service — passed the so-called “Lemon test,” a reference to a 1971 U.S. Supreme Court case. Under Lemon, for a challenged law to be constitutional it must have a secular purpose, not promote or inhibit religion and not entangle government excessively with religion. The court, Benke argued, cannot “discern the motives” of voters.
“We cannot tell whether in casting a vote in favor of Proposition A an individual voter did so for a religious reason, a secular desire the cross remain as part of a veterans memorial or simply a neutral desire to transfer to another venue the issue of the cross’s presence at the site,” she wrote.
Benke also noted that nothing in Proposition A says the cross must stay on the property once the federal government takes over.
Benke and the other two justices who signed on to the opinion were placed on the court by former California Gov. George Deukmejian, a Republican who served from 1983-91.
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