Keep the Mt. Soledad Cross in Place

On a hill overlooking San Diego stands a cross part of a war memorial honoring the men and women who gave their lives defending our freedoms.  The Mt. Soledad cross has been part of that war memorial for more than 50 years and has been in place in one form or another for nearly a century.

The Mt. Soledad cross also has been the focal point of a lengthy legal battle.  In May, a federal district court judge gave the City of San Diego 90 days to remove the cross or face a stiff penalty a $5,000 a day fine.  A federal appeals court refused to step-in and alter the decision.  The clock was ticking.  With just weeks before the deadline, the Supreme Court of the United States did something extremely unusual it granted a stay putting the lower court order on hold while the appeals process continued.  Justice Anthony Kennedy took the extraordinary action following a request from the city.  The ACLJ which had been working in support of the citys efforts to save the cross filed a critical amicus brief with the high court supporting the citys request for a stay.  We represented 22 members of Congress including California Congressman Duncan Hunter, Chairman of the House Armed Services Committee, who also introduced legislation in Congress to save the cross.

The Supreme Court understood that the lower court acted too quickly a rush to judgment, if you will, before considering all of the complex legal issues surrounding this case.

In our brief filed with the high court, we highlighted a critical area of concern that was ignored by the lower court.

In December 2004 Congress designated the Mt. Soledad Veterans Memorial as a national memorial honoring veterans of the United States Armed Forces.  The Secretary of the Interior was instructed to accept, on behalf of the United States, all right, title, and interest of the City [of San Diego] in and to the Mt. Soledad Veterans Memorial in the event that the City offered to donate the Memorial.  In July 2005, San Diego voters overwhelmingly approved a ballot initiative authorizing the City to transfer the Memorial to the federal government.  The fact is the lower court erred by not giving this solution proper and thorough consideration before ordering the removal of the cross.

It is one thing for a trial court to hold that the United States Congress or a municipality violated the United States or California Constitution; it is another thing entirely for a court to render its decision  without even acknowledging that Congress has enacted legislation which deals directly with the specific property at issue in the litigation, the brief argued.

Our argument was simple and direct: The City of San Diegos transfer of the Memorial to the federal government was a sensible way to remedy any remaining violations of the California Constitution, yet the District Court chose to order the City to remove the cross from the Memorial without any attempt to analyze the validity of the transfer.The District Courts refusal to even acknowledge the existence of the Citys attempt to remedy the constitutional problem, let alone analyze its validity, cries out for thorough appellate review.

The unusual intervention of the Supreme Court gives the appeals process more time and ensures this case will be fully litigated.  Its far from over.  The ACLJ stands with the City of San Diego as these appeals move forward in both the state and federal courts.

At the same time, there are other options being explored to save the Mt. Soledad cross.  In Congress, as I mentioned, legislation has been introduced to ensure that the cross remains in place.  And, President Bush is considering action that would keep the cross in place.  The White House is considering a number of alternatives including utilizing eminent domain the federal government moving forward to take possession of the Mt. Soledad cross.

In addition to our legal work, the ACLJ has heard from more than 170,000 Americans who support any and all efforts to save the Mt. Soledad cross.  Those results have been forwarded to members of Congress and to the White House.

The public has a vital interest in ensuring that centuries-old American traditions and practices are not declared unconstitutional without careful and accurate judicial review of all issues involved.   The Establishment Clause of the First Amendment certainly does not require that crosses be removed from Mt. Soledad, Arlington National Cemetery, and the countless other places across the country where the lives and sacrifices of veterans are commemorated.

The Mt. Soledad is not only an important symbol for San Diego but also for the nation.