San Diego Union-Tribune - San Diego Mayor Hopes Cross Fight Not Over - Mayor Urges Appeal

May 7, 2006
By Terry Rodgers
UNION-TRIBUNE STAFF WRITER

San Diego Mayor Jerry Sanders wants the city to continue its 17-year legal battle to preserve the Mount Soledad cross, despite a federal judge's order to remove the religious symbol or face a $5,000-per-day penalty.

This is not about a Christian symbol, Sanders said yesterday at a rally of cross supporters at Soledad Natural Park in La Jolla. What this boils down to is preserving a nationally registered war memorial that is an integral part of San Diego history.

Last week, U.S. District Judge Gordon Thompson ordered the city to remove the reinforced concrete cross from city property within 90 days or be fined each day that it remains.

At yesterday's rally, Sanders, in reference to a ballot measure approved last July, said voters have given me my marching orders and I intend to carry them out.

Sanders urged the City Council to approve his request to send lawyers to the 9th Circuit Court of Appeals to obtain a stay that would suspend Thompson's order while the city pursues appeals in state and federal court.

In 1991, Thompson ruled that the cross's presence in a city park violated the California Constitution's prohibition against government endorsement of religion.

Since then, the city has spent an estimated $468,000 in legal fees and election costs to fight the ruling. In January, a judge ruled that the city might have to pay an additional $280,000 in legal fees.

Initial efforts focused on circumventing the constitutional issue by transferring the land upon which the cross sits to a private group, but a federal court ruled that to be illegal. In 2003, the U.S. Supreme Court refused to hear the city's appeal.

Three times the city has put the issue of saving the cross before voters. The most recent was in July, when 76 percent of city voters approved a ballot measure to give the property under the cross to the federal government for use as a war memorial.

Sanders said he believes the city can still win in the courts.

The courts have routinely approved secular monuments that have crosses as an element of the (war memorial) monument, he said.

Charles LiMandri, an attorney who has represented cross supporters, said the city still has viable legal options. The city's best chance is to move the fight to federal courts, which recently have allowed religious symbols to be displayed in conjunction with war memorials, LiMandri said.

It's even possible that Congress or the president could intervene and acquire the Mount Soledad property through eminent domain, he said.

City Attorney Michael Aguirre attended the rally along with Councilmen Kevin Faulconer, Brian Maienschein and Tony Young, and he spoke in support of Sanders' strategy to pursue all legal means to preserve the cross. Last week, Aguirre said an appeal would be a waste of time and resources.

Yesterday, he offered a different viewpoint.

We owe it to voters to do everything we can, he said.

However, Aguirre hinted that the city is quickly running out of options.

We are free to disagree with (Judge Thompson's) order, but we are not free to disobey that order, he said.

In an interview, Aguirre said: It would be misleading to everybody to say we have a strong case.

The Thomas More Law Center, an advocate of Christian causes, and the American Center for Law and Justice have offered to represent the city on the appeals at no cost, mayoral spokesman Fred Sainz said.

As for any additional legal fees that could be awarded to lawyers representing atheist Philip Paulson, who objected to the cross and sued in 1989, San Diegans for the Mount Soledad National War Memorial have offered to raise private funds to offset those costs.

Philip Thalheimer, who heads the private group trying to save the cross, said he and his supporters will fight for as long as it takes to achieve victory.

It's never over till its over, Thalheimer said. And this is not over.