CNS News - CA Court Ends State Litigation to Remove Mt. Soledad Cross

February 23, 2007
By Randy Hall, CNSNews.com Staff Writer/Editor

(CNSNews.com) - The highest court in California has announced that it will not hear an appeal challenging the transfer of land under the Mount Soledad cross from the City of San Diego to the federal government, a development one conservative legal group said Thursday "effectively brings an end to state litigation" to remove the memorial.

"We're extremely pleased that the California Supreme Court has decided to reject this case, which effectively brings an end to state litigation to remove the Mount Soledad cross memorial," said Jay Sekulow, chief counsel of the American Center for Law and Justice (ACLJ), in a news release.

The ACLJ has been active in defending the constitutionality of the cross, which Sekulow added "is an important symbol honoring veterans of our military."

The announcement that the court would not hear the appeal on Proposition A - a 2005 ballot proposition approved by 76 percent of San Diego voters to donate the property on which the Mount Soledad Memorial sits to the federal government - was made by the justices during their weekly conference on Wednesday.

In an amicus brief filed on Feb. 1, the ACLJ asked the court not to take up an appeal of a decision made by the Fourth Appellate District of the California Court of Appeals, which unanimously held this past November that the donation was constitutional.

"The petition for review should be denied because the clear purpose and effect of Proposition A is to preserve a historically significant war memorial, not to proselytize a particular religious viewpoint or coerce any religious activity," the brief stated.

"This represents the latest in a series of legal victories to keep the cross in place," Sekulow noted.

In addition to last November's ruling upholding the property transfer, the 9th U.S. Circuit Court of Appeals decided in mid-January to render a 17-year-old lawsuit moot and dismiss a 1991 court order for city authorities to remove the cross.

As Cybercast News Service previously reported, the Mount Soledad case has generated national interest since 1998, when the city sold the property to the Mount Soledad War Memorial Association in an effort to prevent the cross from being torn down as a result of a lawsuit filed by Philip Paulson, a war veteran and atheist who passed away in late 2006.

That sale was originally upheld, but the full panel of the 9th Circuit Court of Appeals in San Francisco later ruled it unconstitutional and sent the matter back to district court to work out a proper solution to the conflict.

Last May, Federal District Court Judge George Thompson Jr. told the city to remove the cross before Aug. 1 or face a $5,000-a-day fine. However, Supreme Court Justice Anthony Kennedy issued a stay of that ruling in July.

Despite these victories in state courts, Sekulow noted on Thursday that the battle over the Mount Soledad cross will now move to federal court in the "final legal challenge" to the memorial filed by the American Civil Liberties Union (ACLU) on behalf of a group called the Jewish War Veterans (JWV) and several residents of the San Diego area.

That lawsuit contends "the cross on Mount Soledad is a Latin cross that originated with the Roman Catholic Church, and it does not represent all Christian denominations, let alone other religions or non-believers."

Therefore, by assuming ownership of the site, "the government is not only favoring a particular religion but a sect within that denomination."

"When any government entity - federal, state or local - uses taxpayer funds to acquire and prominently display a religious symbol that is sacred to some but not all religious believers, it disregards the rich religious diversity in our society," Daniel Mach, a senior staff attorney with the ACLU's Program on Freedom of Religion and Belief, said in a news release.

"Veterans of all faiths have served and died, and continue to serve and die in the war against terrorism, to uphold the tenets of our Constitution and keep our communities of faith safe from government interference," said Norman Rosenshein, national commander of the JWV, which describes itself on its website as "the oldest active national veterans service organization in the country."

"It is an affront to non-Christian veterans for their service to be commemorated by a cross," Rosenshein added.

Nevertheless, Sekulow said the ACLJ will soon file briefs in the ongoing federal case on behalf of members of Congress.

"We believe this memorial will survive the final round of legal challenges and remain in place," he added. "We will continue our legal work to that end."