Atop San Diego’s Mount Soledad—an 822-foot hill overlooking the seaside village of La Jolla—sits a 29-foot concrete cross. Erected in 1954 to commemorate Korean War veterans, the cross is part of a 170-acre, city-owned park offering breathtaking views of the Pacific coastline. For 35 years, it sat unmolested. Then, in 1989, an atheist named Philip Paulson, represented by the American Civil Liberties Union, filed a federal lawsuit alleging that the display of a cross on public land was an unconstitutional establishment of religion. Paulson died in 2006, but the litigation he began continues to this day.
The Mount Soledad case is a microcosm of the American culture war, with lawsuits used as weapons, federal courts serving as the battleground, and activist judges allying with the ACLU. The secular left has long sought to purge religious symbols and imagery from the public square, and the Mount Soledad cross was an inevitable target on a list that included nativity scenes, Ten Commandment displays, and religious invocations at public meetings.
In 1991, a federal district court judge ruled in favor of the ACLU’s claim that the presence of a privately funded cross on public property violated the California constitution’s establishment clause. The U.S. Ninth Circuit Court of Appeals rubber-stamped the district court’s decision in 1993. The city of San Diego faced a dilemma. The U.S. Supreme Court does not have jurisdiction over disputes involving state law, and the California Supreme Court does not have jurisdiction over federal court litigation. The liberal Ninth Circuit was the final word, with no further appellate review. As is typical in “civil rights” cases, the ACLU won substantial attorneys’ fees, thus creating a cottage industry and ensuring that the ACLU’s “pro bono” litigation would continue as long as the cross remained in place.
Rather than bulldoze the cross, the city decided—with the support of 76 percent of voters in a ballot referendum—to sell the land under the cross in order to remove any unconstitutional “taint.” After some legal skirmishing, the city held a sealed-bid auction to sell a half-acre parcel surrounding the base of the cross. The successful bidder wouldn’t be required to retain the cross, though the property would have to be used as a war memorial, and the buyer would be responsible for all future maintenance costs. The Mt. Soledad Memorial Association won with the highest bid of $106,000. This should have put an end to the dispute, as the privately erected cross was now standing on private property. The association expanded the memorial, adding features honoring individual veterans, such as bollards, engraved paving stones, and more than 3,000 commemorative plaques.
Remarkably, Paulson and the ACLU challenged the auction’s legitimacy. The same district judge who ruled in his favor in 1991 rejected the complaint, but Paulson appealed. In 2001, a three-judge panel of the Ninth Circuit unanimously affirmed the district court ruling. But Paulson still wasn’t finished. He sought an en banc hearing, an extraordinary procedure for correcting internal conflicts among panels. His persistence paid off. In 2002, the Ninth Circuit invalidated the auction by a 7-4 vote based on an argument Paulson didn’t even make: that it was “rigged” in favor of preserving the cross because—incredibly—any bidders wishing to remove the cross “would be saddled with the costs,” placing them at a financial disadvantage vis-à-vis bidders who intended to preserve the cross. Because the ruling once again rested on an interpretation of California’s constitution, the city couldn’t appeal the Ninth Circuit’s absurd decision.
As the city’s legal options narrowed, the cross dispute began to attract national attention. President George W. Bush in 2004 signed legislation designating the cross as a national veteran’s memorial if the city donated it, which more than three-quarters of voters approved. In the meantime, the city faced ongoing lawsuits along with the prospect of $5,000-a-day fines if officials did not bulldoze the cross. In 2006, the city obtained a stay of the removal order from U.S. Supreme Court Justice Anthony Kennedy. When a state court judge invalidated the transfer to federal ownership, Congress voted overwhelmingly to seize the cross by eminent domain, and the federal government took possession in August 2006.
Yet, litigation continued. After Paulson died, the ACLU found another atheist, Steve Trunk, to take his place. The ACLU challenged federal ownership of the cross as a violation of the U.S. Constitution, but in 2008 the district judge found that the federal government had a secular purpose for acquiring the memorial. The Ninth Circuit reversed the district court in 2011, ruling instead that even though Congress had a secular purpose for acquiring the memorial (including the cross), the primary effect was to endorse religious belief. The Supreme Court last June declined to review the case until the Ninth Circuit appeals are exhausted. Meantime, Congress—evidently not hopeful for a changed outcome from the Ninth Circuit—recently approved the transfer of ownership of the cross to the Mt. Soledad Memorial Association, repeating the strategy the city attempted without success in 1998. Even Democratic California senator Dianne Feinstein supported the bill, which President Obama signed into law this month.
The ACLU’s tactics, “secular in purpose,” resemble nothing so much as those of a religious fanatic. Its opposition to the cross is implacable. Commenting on the federal government’s transfer of ownership, ACLU lawyer James McElroy said simply: “We’ve been here before.” The Ninth Circuit’s resolve to bulldoze the cross is stymied—at least temporarily—by popular resistance to its destruction. Another quarter century of taxpayer-funded litigation may result.