Mount Soledad Veterans Memorial cross finally safe after 25-year legal battle with ACLU & atheists ends

by Kimberly Pennington |

(Mount Soledad Veteran's Memorial/FACEBOOK)

SAN DIEGO (Christian Examiner) -- A 27-foot cross perched atop Mount Soledad in San Diego's La Jolla neighborhood as part of the Mount Soledad Veterans Memorial is no longer in danger of being removed thanks to the $1.4 million sale of the half-acre property on which it sits by the Department of Defense to the Mount Soledad Memorial Association.

The completion of the sale earlier this month gives the 501 (c) (3) organization, which has maintained the site since 1954, sole decision-making power for the first time in its history.

"It marks the first time where our membership can manage the Memorial's affairs from a place of ownership and accountability for the property, which is a new and welcomed step for the Association," Bruce Bailey, President and CEO of the Association's Board of Trustees, said in a statement.

The all-cash transaction, completed July 17, ends a 25-year legal battle which threatened the cross' existence as the most prominent feature of the veterans memorial. Over time, the legal battle involved numerous attorneys, district and appellate court judges, the United States Congress and Supreme Court, and two United States presidents.

First erected in 1954 as a memorial to veterans of the Korean War, the legality of the cross on public property was challenged in 1989 when the American Civil Liberties Union filed a suit against the city of San Diego on behalf of atheist and military veteran Philip Paulson on the grounds the cross' existence on city-owned property violated the California state constitution's provision for separation of church and state.

(Mount Soledad Veteran's Memorial/FACEBOOK)

Lower courts initially ruled in favor of Paulson and the ACLU including U.S. District Judge Gordon Thompson Jr. who, in 2006, ordered the city to remove the cross or face fines of $5,000 per day for each day it remained standing.

When the Ninth District U.S. Circuit Court of Appeals refused to issue a stay on Thompson's ruling, the city appealed to the United States Supreme Court. Justice Anthony M. Kennedy, acting solely on behalf of the Court, stayed Thompson's ruling giving the city time to exhaust other legal options.

San Diego citizens voted in 2005 by a 76 percent margin to transfer ownership of the property to the federal government, but California Superior Court Judge Patricia Cowett declared that ballot measure unconstitutional.

In a demonstration of bi-partisan cooperation in 2006, both houses of the United States Congress approved a bill allowing the federal government to assume possession of the property through eminent domain rights for a federal military war memorial. President George W. Bush signed the bill into law.

The ACLU then sued the city of San Diego for transferring the property to the federal government. During this time Paulson became terminally ill and died, and fellow veteran and self-proclaimed atheist Steven Trunk became a plaintiff in the lawsuit.

U.S. District Judge Larry Burns threw out the lawsuit declaring San Diego could not be considered a party in the case since it no longer owned the property. Judge Burns also ruled nothing was inherently wrong with a cross on public property.

Jewish War Veterans joined Trunk and the ACLU when they took the case to court again still claiming the property transfer to be illegal and the presence of the cross to be in violation of separation of church and state.

The Ninth Circuit U.S. Court of Appeals agreed with the plaintiffs the cross was unconstitutional in early 2011, but the 3-judge panel refused to order its removal. "This result does not mean that the memorial could not be modified to pass constitutional muster no does it mean that no cross can be part of this veterans' memorial. We take no positions on those issues," their ruling read.

Attorneys representing the Mount Soledad Memorial Association vowed to take the case to the United State Supreme Court, but twice the full court refused to review the case.

After another federal judge ordered the cross to be removed in 2013, the non-profit Mount Soledad Memorial Association raised money to purchase the property from the federal government. In late 2014, Congress passed the National Defense Authorization Act of 2015 calling for the property to be sold to the Association, and President Barack Obama signed the measure into law last December.

"We are honored to now own this property and will continue to recognize our nation's veterans with the same spirit of integrity our Association has demonstrated for the past 60 years," Bailey said.

In addition to the cross, the memorial now has a 35-foot flag pole and more than 3,700 plaques honoring individual veterans, living and deceased, who served in all wars from the Revolutionary War to current Middle East conflicts. It hosts annual Memorial Day and Veterans Week events along with more than 40 ceremonies each year honoring individual veterans.

Past honorees include Presidents Ronald Reagan and Gerald Ford; Brig. General and actor Jimmy Stewart; actor Audie Murphy; and Louis Zamperini whose life was the subject of the 2010 book Unbroken and the 2013 movie of the same title.

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