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Court Rejects San Diego Ploy in Cross Dispute

Law: City sold site of the war memorial to a private group that promised to maintain it. Appellate judges rule that the move was unconstitutional.


SAN DIEGO — A federal appeals court Wednesday rejected a strategy used by San Diego city officials to maintain a cross on public property atop Mt. Soledad overlooking La Jolla.

The city had arranged for the property to be sold to a nonprofit corporation dedicated to keeping the cross. But the U.S. 9th Circuit Court of Appeals, by a 7-4 vote, said the sale was unconstitutional because, in effect, it was rigged to exclude groups that might want to tear down the cross.

The 43-foot-tall cross, a memorial to the city's war dead, enjoys enormous public support. But the ACLU has waged a decade-long court fight against the cross on the grounds that it violates the constitutional separation of church and state.

"It is past time for the city to quit evading its constitutional duty and end its entanglement with the Soledad cross," said ACLU legal director Jordan Budd.

Far from quitting the fight, City Atty. Casey Gwinn said he will advise the council about a possible appeal to the U.S. Supreme Court.

"This is the same court that apparently found the Pledge of Allegiance unconstitutional," Gwinn said.

"This [the cross] case has been going on for 13 years," Gwinn said. "It's not likely to end any time soon."

In 1991 U.S. District Judge Gordon Thompson Jr. ruled that it was unconstitutional for the city to maintain a cross in a publicly owned park, even as a war memorial.

In 2000, Thompson upheld the city's sale of the land to the Mt. Soledad Memorial Assn., a group formed by American Legion Post 275 in La Jolla in the 1950s to build and maintain the cross for the city.

Thompson's decision was upheld last year by a three-judge panel of the 9th Circuit. Wednesday's ruling overturns that decision.

To satisfy Thompson's 1990 ruling, the city arranged an auction of the property.

But the rules of the auction required buyers to promise to maintain the site as a war memorial.

"The city thereby granted a direct, immediate and substantial benefit in aid of a Christian message," the court ruled.

Michael Neil, a retired Marine Corps general and San Diego attorney, urged the council to appeal to the Supreme Court.

"I think it is an outrage that a minority group such as atheists would attempt to assert the tyranny of the minority over the majority," Neil said.

"It would be a slap in the face to veterans everywhere to tear down a cross that has come to symbolize the sacrifice of veterans for our country," Neil said.

Though they may squabble about innumerable issues, successive city councils have been united in their support of the cross, which was built in 1952 at a site that makes it one of the city's most visible monuments.

But San Diego attorney James McElroy, who served as co-counsel for the ACLU action, said the constitutional issues should not be decided by popular sentiment. The case was brought on behalf of Vietnam veteran Philip Paulson, an atheist.

"I'm old enough to remember when standing for integration in the South wasn't very popular," McElroy said. "Sometimes doing the right thing is not very popular."

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