Mount Soledad

Mount Soledad is a prominent landmark in the city of San Diego, California, United States. The 822-foot-tall hill lies between Interstate 5 to the east and the Pacific Ocean to the west. It is mostly within the community of La Jolla where the northern and eastern slopes form a sharp escarpment along the Rose Canyon Fault. The community of Pacific Beach is on the gentler southern slope. There are several radio and television transmitters located on the summit including television channels 8 and 10, the CBS and ABC affiliates respectively. Commercial aircraft approaching San Diego from the direction of Los Angeles often use Mt. Soledad as their point to start the downwind leg of their approach to San Diego International Airport.

Just east of the summit of Mt. Soledad is the 29-foot-tall cross (43 feet tall, including the base ) which was erected in 1954. A cross has been on the site since 1913. Architect Donald Campbell designed the present latin cross in recessed concrete with a twelve-foot arm spread in 1954. In 1998, after the sale of the cross and the land it stands on to the nonprofit Mount Soledad Memorial Association, the cross was transformed into being the centerpiece of a newly erected Korean War Memorial. However, there is a legal discrepancy here. "Federal District Court Judge Gordon Thompson will schedule a hearing before the election to determine the ownership of the Mt. Soledad property. The City believes the Judge will rule the property is owned by the City of San Diego." - [Press Release Statement by Deputy City Attorney Jim Chapin on behalf of former San Diego City Attorney Casey Gwinn, August 6, 2004]

Cycling

Because of the long steady climbs and great views, Mount Soledad is a popular cycling destination and area. There are numerous routes ranging from the relatively gradual climb up Nautilus Street.on the western slopes to the very steep Hidden Valley Road to Via Capri route on the north side.

The cross controversy

History of cross prior to 1989

Three different shaped Christian crosses have been constructed since 1913 on City government property at the apex of the Mt. Soledad Natural Park in the Village of La Jolla.

The original cross on Mt. Soledad was erected in 1913 by private citizens of La Jolla and Pacific Beach, but was stolen in 1923 and later in the year of 1923 the wooden cross was affixed back in the ground on Mt. Soledad Natural Park only to be burned down by the Ku Klux Klan [1].

The second cross was erected in 1934 by a private group of Protestant Christians from La Jolla and Pacific Beach. This sturdier, stucco-over-wood frame cross was blown down by blustery winds in 1952.

The third and current 29-feet tall cross on top of a 14-feet tall stepped platform, and was installed in 1954. It still stands today. A windstorm damaged one of the flimsy constructed cross members in 1955 and the concrete structure had to be repaired.

Mount Soledad Easter Cross

Mt. Soledad Easter Cross or War Memorial?

Whether the Mt. Soledad Easter Cross is a "War Memorial" or the unmistakable symbol of the Christian Religion, it has become a subject of legal debate for the following reasons:

1. The Christian Cross on Mt. Soledad was renamed a "War Memorial" or "Veterans Memorial" after the initial lawsuit was filed in 1989 in a blatant attempt to change the debate from defending a relgious symbol on public land to defending a memorial. Every annual publication of the Thomas Brothers Maps from 1954 to 1989 presented a geographic legal description of the location as the "Mt. Soledad Easter Cross" after which year (cross case was filed on May 31, 1989) the name of the legal location on the map was changed to the "Mt. Soledad Memorial." -- [Paulson v. City of San Diego, 262 F.3d 885 (9th Cir. 2001), Documents on file with the US District Court of Southern California]
2. There was no placard or marker to be found anywhere on Mt. Soledad Natural Park nor at the site of the Mt. Soledad Easter Cross to indicate that it was a veterans' memorial until after November 11, 1989, (See picture below of the Plaque at the base of the cross).
3. Every Easter holiday sunrise since 1954 was an occasion at the Mt. Soledad Easter Cross for local Christian worship services. On Easter Sunday, April 7, 1996, University of California-San Diego Political Science Professor (Emeritus) Peter Irons applied for and was granted a permit and conducted a well-attended secular sunrise rally for people of all religions and for those with no religion. There is no record of a Jewish, Muslim, Hindu, Buddhist or any other major religious sect or denomination having a religious service on Mt. Soledad.
4. The Mt. Soledad Easter Cross was dedicated to "Our Lord and Savior Jesus Christ" in a dedication bulletin by the grandmother of William J. Kellogg, President of the Mt. Soledad Memorial Association on Easter Sunday, 1954.-- [Paulson v. City of San Diego, 262 F.3d 885 (9th Cir. 2001), Documents on file with the US District Court of Southern California]
5. The Mt. Soledad Memorial Association made improvements to the property within Mt. Soledad Natural Park. All improvements were added after the original case was filed and while litigation proceedings were taking place. "Six concentric walls hold 3,200 black granite plaques purchased by donors and engraved with the names and photos of war veterans -- currently more than 1,700 are in place."
6. The Mt. Soledad Memorial Association claims that the site for the Veterans' Memorial on Mt. Soledad Natural Park was dedicated on Easter holiday to commemorate and memorialize those who died during the Korean War era. However, groups who oppose them claim that the cross shows preference for only Christian veterans, and discrimination against non-Christian veterans. The Mt. Soledad Easter Cross is not a sacred symbol for non-Christian veterans, and it has been argued that the presence of the Mt. Soledad Easter Cross demeans non-Christians with second-class citizenship status in their own country.
7. As it currently stands, Plaintiff Philip Paulson (Paulson v. City of San Diego) claimed, and the courts have consistently agreed, that the Mt. Soledad Easter Cross fosters an excessive entanglement by government with religion. In 1916 by Ordinance No. 6670, the Mt. Soledad Natural Park became dedicated city owned parkland. The Mt. Soledad Natural Park was dedicated and intended to be enjoyed by all citizens as a public park. The argument of Paulson and others is that if the City decides to honor veterans with a memorial, then an inclusive veterans memorial ought to display a secular design that is strictly "religiously neutral" to honor veterans of all faiths, and also those with no religious faith. -- [The "Lemon Test" pursuant to US Supreme Court ruling in Lemon v. Kurtzman, 403 U.S. 602 (1971) [2] required government to remain “religiously neutral” with respect to religion. To be constitutional, a statute must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion."]

1989-1991

The City of San Diego was the target of a lawsuit in May 31, 1989 charging that the presence of the cross violated the California Constitution and the separation of church and state in the United States. On December 3, 1991, Gordon Thompson, Jr., a judge for the United States District Court for the Southern District of California, ruled in favor of the plaintiff, Philip Paulson, resident of San Diego and a veteran of the Vietnam war era, noting that the cross was permanently positioned inside a public park and was maintained at taxpayers' expense. He further noted that it violated Article 1, Section 4 of the California Constitution, which is known as the "No Preference" Clause.

Article 1, Section 4 of the California State Constitution: [3] subtitled "Liberty of Conscience." California state, municipal and special units of government are instructed by this "No Preference Clause" from discriminating or preferring one religion over another.

"Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion. A person is not incompetent to be a witness or juror because of his or her opinions on religious beliefs."

Article XVI, section 5 of the California State Constitution: [4] State, County and local units of government can not use tax money or grant property to aid of any religious sect, church, creed, or sectarian purpose.

"Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the State, or any city, city and county, town, or other municipal corporation for any religious creed, church, or sectarian purpose whatever; provided, that nothing in this section shall prevent the Legislature granting aid pursuant to Section 3 of Article XVI."'

1992-1993

On June 2, 1992, San Diego voters approved Proposition F, which allowed transfer of a portion of Mt. Soledad Natural Park to a non-profit corporation for maintenance of a historic war memorial. In 1993, the city appealed the 1991 District Court decision (permanent injunction forbidding the permanent presence of the cross on publicly owned land) to the Ninth Circuit Court of Appeals, which upheld the District Court injunction, holding that the mere designation of the cross as a war memorial was not enough to satisfy the separationist No Preference Clause of the California Constitution. The Ninth Circuit Appellate Court held that "highly visible, religiously significant Easter crosses, erected in public parks owned and maintained by local government, in the absence of any symbols of other religions, and without any independent historical significance, violated the 'No Preference' Clause of the California Constitution". The City and County of San Diego petitioned and were granted a hearing en banc (a vote by the entire 28 judges of the court). They lost by an unanimous vote by all 28 judges.

1994

In response to the injunction, in 1994, the city sold 224 square feet of land at the base of the cross for $24,000 to the Mount Soledad Association. At that time, the city did not solicit or consider any bids or offers from other prospective buyers of this land and the Association clearly stated its intention to keep the cross as part of its proposed war memorial.

On October 10, 1994, the City and County of San Diego then petitioned the US Supreme Court with a Writ of Certiorari; the Supreme Court refused to hear the appeal.

1997

On September 18, 1997, Judge Thompson ruled that both the negotiated sale of the cross site to the Mount Soledad Memorial Association and the size for the plot sold to the Mount Soledad Memorial Association violated two separate provisions of the California Constitution. Judge Thompson wrote, "it is the exclusion of any other purchasers of or bidders for the land that gives the appearance of preferring the Christian religion that the California Constitution forbids." Judge Thompson also wrote that "the City’s attempt to comply with this Court’s order by selling only a small portion of the land underneath the Mount Soledad cross still shows a preference or aid to the Christian religion." Judge Thompson added, "Both the method of sale and the amount of land sold underneath the Mount Soledad cross do not cure the constitutional infirmities outlined in this Court’s previous Order." (referring to the December 3, 1991 order stating "a permanent injunction forbidding the permanent presence" of the Mount Soledad cross on public property. Judge Thompson again gave the City of San Diego another 30 days to remove the cross).

1998-2001

The City attempted to sell the land to a private group again in 1998. Five bids were submitted; the bid from the Mount Soledad Memorial Association (the highest) was accepted and a half-acre of land around the cross was sold to the Association for $106,000. In a decision issued on February 3, 2000, Judge Thompson upheld the transfer. However, in a 7-4 decision, the appellate court Ninth Circuit Court of Appeals found that the City's sale of the cross to the Mount Soledad Memorial Association violated Article XVI, section 5, of the California Constitution, which prohibits government from affording any financial advantage or subsidy to religion.

2002-2003

The City and the Mount Soledad Memorial Association petitioned the Court for reconsideration and/or rehearing, which was denied on October 22, 2002. The City thereafter sought review of the en banc decision by the United States Supreme Court. On April 21, 2003, the Supreme Court denied defendants' petitions for review.

Plaintiff Paulson and defendant Mount Soledad Memorial Association agreed to a settlement that called for removal of the cross in exchange for which the Association would gain ownership of the property. The other defendant, the City of San Diego, never agreed to the settlement. While the cross and land were apparently owned by the Association (after the 1998 sale), the Association spent over $900,000 to add significant improvements to the memorial site, including six concentric granite wall, pavers, bollards, and a flagpole with American flag. Additionally, the Association sold over 1,600 plaques memorializing individual service men and women. What began as a simple ... cross evolved into several walls of plaques encircling the cross.

2004

Peters Resolution Agrees To the Signing of the Settlement Agreement

On July 27, 2004, the City Council took up the motion by Councilmember Scott Peters: "Should voters reject the proposal (Proposition K), City Attorney shall enter into the settlement agreement now with Mt. Soledad Memorial Association and Plaintiffs."

(City Council Motion Passes: 5 Yeas, 3 Nays, 1 absent)

Voters Reject San Diego City Proposition K

Proposition K: City of San Diego seeks authorization to sell portion of Mount Soledad to the Highest Bidder.

(Proposition K Fails: No votes totaled 256,745 or 59.18%, Yes votes totaled 177,062 or 40.82%).

In November 2004, voters rejected a ballot measure to authorize a third sale of the land. Thus, pursuant to the Peters Agreement the City of San Diego is obligated under the legally binding terms of the Council Resolution (that was moved, seconded and passed) to remove the cross from the Mt. Soledad Natural Park. Although, the City of San Diego has not as yet signed the Settlement Agreement, contract law obligates the City to do so. US District Court Judge Gordon Thompson is aware of this contractual fact and the law and has a motion still pending before him to rule on this matter.

Plaque at the base of the cross

On December 8, 2004, Section 116 of Public Law 108-447 designated the Memorial as a national veterans memorial national memorial, authorized the United States Department of the Interior to accept a donation of the memorial from the City, and directed the National Park Service to work with the Mount Soledad Memorial Association in the administration and maintenance of the memorial. This veterans memorial designation was added by Republican Reps. Randy "Duke" Cunningham (now Federal Detention Prison Inmate 94405-198 [5]) and Duncan Hunter as a rider to a voluminous spending bill approved in November 2004 by Congress. Under the bill, the site would become part of the National Park Service but would be maintained by the Mount Soledad Memorial Association.

2005

On March 8, 2005 the San Diego City Council voted against a proposal to transfer the land to the National Park Service, a move which proponents believed might avoid the court-ordered removal of the cross. Opponents claimed this would merely shift the church-state issue to federal jurisdiction and would only delay the eventual removal of the cross. The City Council declined the offer of the Federal Government to accept the transfer of the Mt. Soledad Memorial property. (Council Motion Passes: 5 Yeas, 3 Nays, 1 Absent)

Grassroots opposition to the City Council's action resulted in a referendary petition, signed by over 100,000 County of San Diego residents, calling on the Council to reverse its decision against donating the property. On May 16, 2005, the Council reconsidered its decision to transfer the land at the request of those petitioners, and, after rejecting a proposal to directly donate the land to the Federal government in a 5-4 vote, the Council voted 6-3 to include a ballot measure in the upcoming special Mayoral election to be held July 26 which would allow the voters of San Diego ballot item (PDF) to approve the donation.

On July 26, 2005, the ballot measure to transfer the property to the Interior Department as a veterans memorial received votes exceeding the two-thirds threshold required to pass. Voters Pass Prop A: "Shall the City of San Diego donate to the federal government all of the City's rights, title, and interest in the Mt. Soledad Veterans Memorial property for the federal government's use of the property as a national memorial honoring veterans of the United States Armed Forces?" (Proposition A Passes: Yes votes totaled 197,125 or 75.96% and the No votes totaled 62,373 or 24.04%). However, the plaintiff in the federal court case filed a case in California Superior Court challenging the constitutionality of the proposition.

Mount Soledad Easter Cross

On September 3, Superior Court Judge Patricia Yin Cowett issued a temporary restraining order barring the transfer until the issue was settled. Lawyers on each side presented their arguments on October 3, 2005. A key issue was the status of the area as a secular war memorial, given the fact that it was not developed as a memorial until ten years after the first lawsuit. Prior to the law suit, no plaque or marker designated or explained the site's status as a war memorial, and during the fifty years prior to the law suit, there were no ceremonies or recognitions of the Korean War or to war veterans at the site, only Easter Sunday services. A 1985 map of the "San Diego Area" identifies the cross as the Mt. Soledad Easter Cross. A court document also refers to several references of the Easter Cross including, "...the U.S. Department of Commerce Coast and Geodetic Survey (indicating "Easter Cross" on chart)."

The plaintiff argued that the ballot measure was unconstitutional because it resulted in an unconstitutional act -- transferring the property to the federal government for the purpose of saving the cross, a purely religious symbol. The City argued that the purpose of the ballot measure was to determine the will of the people of San Diego with respect to the federal government's offer to accept a donation of the property. The private citizens' group which had sponsored the petition leading to ballot measure argued that display of the cross was not unconstitutional because the many significant improvements added to it removed any doubt that it is a genuine veterans memorial.

On October 7, 2005, Judge Cowett found the ballot measure unconstitutional. Her ruling stated: "Maintenance of this Latin Cross as it is on the property in question, is found to be an unconstitutional preference of religion in violation of Article I, Section 4, of the California Constitution, and the transfer of the memorial with the cross as its centerpiece to the federal government to save the cross as it is, where it is, is an unconstitutional aid to religion in violation of Article XVI, Section 5, of the California Constitution."

In December, 2005 Philip Paulson's lawyer James McElroy asked a San Diego Superior Court judge to order the city of San Diego to pay his legal fees for the October victory.

2006

On January 13, 2006, Judge Cowett ruled that the city must pay for McElroy's fees, but exactly how much is yet to be determined. The city plans to appeal.

A section of the memorial wall at Mount Soledad

On May 3, 2006, a federal judge ruled that the Mount Soledad cross must be removed from the property within 90 days, or the city of San Diego will be fined $5,000 a day. The U.S. District Judge Gordon Thompson Jr. declared that "It is now time, and perhaps long overdue, for this Court to enforce its initial permanent injunction forbidding the presence of the Mount Soledad Cross on City property." The current mayor, Jerry Sanders, says he plans on proposing an appeal to the decision by Judge Thompson. Sanders pointed out that over 75% of San Diego voters believe the cross should remain in place, as evidenced by the votes in favor of transferring the memorial property to the federal government. The head of the Mount Soledad Memorial Association, the private organization that operates the memorial, hopes that the cross will be taken down and moved to a nearby private property. [6]

On May 11, 2006, Karen Kucher of the San Diego Union-Tribune reported: "Mayor Jerry Sanders on Thursday sought presidential intervention in the legal battle over the Mount Soledad cross, asking President Bush to use the power of eminent domain to take the city-owned property in La Jolla on which the memorial and cross sit. Sanders warned of the “uncertain future” of the monument and said he fully supported the federal government condemning the property to save the cross, a request first made late Wednesday by Rep. Duncan Hunter, R-Alpine. ... City Attorney Michael Aguirre weighed in on the issue Thursday afternoon – several hours after the mayor's press conference – and he questioned whether the request for federal condemnation of the property violated an existing judicial order. “Such a move may be viewed by the San Diego Superior and United State District courts as being in violation of existing judicial orders and could result in a contempt finding and or sanctions against the city of San Diego,” Aguirre said in a statement."

On May 23, 2006, the San Diego City Council voted 5-3 to appeal U.S. District Judge Gordon Thompson Jr.'s May 3rd order to remove the cross.

On June 2, 2006, Mayor Jerry Sanders announced that the city had filed an appeal of Judge Thomson's order to remove the cross. The city also asked that the appeal be ruled on by July 8. Sanders said that if the appeal was not granted then the city would comply with the order.

On June 5, 2006, J. Kurtis Wahlbrink of La Jolla suggested in a letter to the editor of the San Diego Union-Tribune that instead of removing the cross, that it be converted to a peace sign.

On June 21, 2006, a three-judge panel of the 9th U.S. Circuit Court of Appeals declined to step in and suspend the $5,000 daily fine that will be imposed on the city if the cross isn't removed from city property by August 1st

On June 26, 2006, San Diego County Congressmen Rep. Duncan Hunter (R-52nd), Rep. Brian Bilbray (R-50th) and Rep. Darrell Issa (R-49th) introduced House Report Bill 5683, [7] a Bill to preserve the Mt. Soledad Veterans Memorial in San Diego, California, by providing for the immediate acquisition of the memorial by the United States.

On July 3, 2006, Supreme Court Justice Anthony M. Kennedy issued a temporary stay in favor of the city and the cross's supporters to allow time for further appeals. Kennedy granted the stay [8] of unspecified length without comment, pending a further order from him or the entire court in the matter.[9] However, Justice Anthony Kennedy was a swing vote on a related secular ruling in Lee v. Weisman, [10] and his stay order does not indicate a particular bias in favor or opposition to the cross case.

On July 7, 2006, Supreme Court Justice Anthony M. Kennedy, in a 4-page decision granted the city of San Diego's request for a stay [11] pending a ruling on the city's appeal.

On July 19, 2006, House Report Bill 5683, [12] a Bill to transfer the Mount Soledad Cross to the federal government passed in the House of Representatives by a vote of 349-74 (Roll Call). Sen. Jeff Sessions, (R-Ala.) [13] introduced identical legislation in the Senate that would allow the federal government to take the Mt. Soledad property by eminent domain. President George W. Bush, on the day of the vote, issued a "Statement of Administration Policy" that "strongly" supported H.R. 5683. The Statement read, in part, "In the face of legal action threatening the continued existence of the current Memorial, the people of San Diego have clearly expressed their desire to keep the Mt. Soledad Veterans Memorial in its present form. Judicial activism should not stand in the way of the people, and the Administration commends Rep. Hunter for his efforts in introducing this bill."

On August 1, 2006, the US Senate approved an eminent domain plan to transfer a Latin Cross and the land underneath it to federal control in an effort to avoid a court-ordered removal of the cross that stands on Mt. Soledad Natural Park. [14] The Plaintiff in this cross case seeks a court ordered injunction and stay by stopping the transfer until all of the legal issues have been adjudicated in the courts as well as alleging an abuse of power in exercising eminent domain [15].

External links

• San Diego Union Tribune January 13, 2006 article
• Public Law 108-447
• June 22, 2002 Ninth Circuit Court of Appeals en banc decision
• LA Times Editorial

32°50′23″N 117°14′41″W