Steve Trunk, an FFRF Board and Lifetime Member, spoke Oct. 8 at FFRF’s 34th national convention in Hartford, Conn., where he received the Atheist in Foxhole Award. He is plaintiff in a lawsuit in which the 9th Circuit U.S. Court of Appeals in January declared the Mount Soledad cross near San Diego, Calif., unconstitutional. Steve suggested FFRF inaugurate an Atheist in Foxhole honoree, and nominated Philip Paulson to be its first recipient in 2006.
Thank you, this really is the most awesome honor! Although I have to admit that it does feel just a little bit weird receiving an award that I thought up. It’s kind of like, “Here’s your trophy, Mr. Heisman.”
I grew up in a religious household. My dad was hard-core, Deep South Southern Baptist, and my mom, Church of England. I went to Catholic school. If I ever want a prescription for medical marijuana, that’s all I gotta tell ’em.
I first had doubts about god the same time, I guess, as do most kids when we started to figure out the science we were learning didn’t match the technological capability of Santa Claus. And because in my circle of childhood friends all our fathers were in the Air Force, we probably began questioning even earlier than most. We’re surrounded by the latest and greatest in jet fighter and space technology and begin to ask ourselves, “If Santa Claus can do this, why can’t the United States Air Force?” The only logical conclusion was Santa Claus, unlike the Air Force, probably didn’t exist. And if that was true of Santa Claus . . .
I began to have really serious doubts about the truth of religious stories one evening in the basement of the Rosedale Baptist Church in Covington, Ky. I discovered that the blood of Christ was delivered cleverly disguised as Hi-C grape juice.
So I’ve been an atheist, skeptic, nonbeliever, freethinker for pretty much most of my life. Shortly after moving to San Diego in 1980, I became more out and more activist when I connected with the San Diego Humanist group while volunteering as clinic defense at the local Planned Parenthood. Then I discovered FFRF when Dan Barker’s concert tour series brought him to San Diego. Still don’t have the T-shirt.
The Mount Soledad cross sits atop one of the most picturesque spots in San Diego County. It’s about 43 feet tall, made of concrete and painted white. Until 1989, it sat there all by itself. Erected in 1954 and officially named the Mount Soledad Easter cross, it overlooked no services recognizing veterans, no services on Memorial Day and none on Armistice Day, on D-Day or VE Day. But you can bet your last dollar, there was a service every Easter Sunday morning.
San Diego is a really conservative place. The area where the cross sits, La Jolla, is [a corruption of] Spanish for “the jewel,” and the area is one of the most affluent in the country. In fact, as I was driving Annie Laurie up to the cross a few weeks ago, I commented, “You can tell we are in the good part of town; the car behind us is a Maserati.”
The earliest record of a cross being placed on the mountain was in 1913. Considerably smaller than the current one and made of wood, it was twice knocked down during storms and replaced.
In the 1920s and ’30s, the Ku Klux Klan was very active in San Diego. Roughly a block from my house used to be the site of KKK headquarters for San Diego and Imperial counties. La Jolla at the time was a very white place. It was WASP-only, and that was actually written into the covenants, conditions and restrictions. Real estate agents, up until well into the 1960s, were not allowed to sell houses to nonwhites or even to Jewish people. It wasn’t until the Scripps Institute of Oceanography settled in the area that those rules began to change, simply because many of the scientists that the Scripps Institute hired were Jewish.
The Klan likely burned crosses atop Mount Soledad. But with many members of city government and police being active members, the burnings would clearly not have been accurately recorded. Details are sketchy. What we know for sure is that Gregory Peck, documented in his autobiography, witnessed cross-burnings as a young boy in the area. Later in life, Peck would draw on that experience while making the film “To Kill a Mockingbird.”
The cross is not necessarily just a symbol of Christian love and salvation. To some, it’s a symbol of hatred and racism.
The war memorial
The present cross was dedicated in 1954 “as a reminder of God’s promise to man of everlasting life and of those persons who gave their lives for our freedom. . .” The primary stated objective in erecting it was to construct “a permanent handsome cast concrete cross and to create a park worthy of this magnificent view and worthy to be a setting for the symbol of Christianity.”
Although the cross stood alone for most of its history, it has become the centerpiece of a more extensive war memorial. This memorial now features six concentric walls around the base of the cross, with approximately 2,100 plaques honoring individual veterans, platoons and groups of soldiers. Bricks and paving stones also honor veterans, and 23 bollards honor community and veterans organizations. An American flag flies from a large pole.
In 1989, two Vietnam veterans, one of whom was Phil Paulson — the first recipient of the Atheist in Foxhole Award — sued the city seeking to remove the cross from city land. Those two cases were combined. Ultimately the veterans prevailed. The court found that the cross’s location violated the No Preference Clause of the California Constitution. The court held that to the extent that the cross could be construed as a war memorial, it was only a memorial in the sense it would be a sectarian war memorial carrying an inherently religious message and creating an appearance of honoring only veterans of a particular religion.
The city of San Diego sold the land to the Mount Soledad Memorial Association, a sale later deemed illegal because the open-bid process wasn’t followed. What did follow was a mind-numbing series of appeals, filings, counter filings, special elections, city council meetings, special city council meetings, more special elections, more than a few backroom deals and yet another special election.
Immediately after that sale, the memorial association, led by Charles LiMandri of the Thomas More Law Center, started building the memorial that now exists under the cross. This is one of the most salient factors in this whole story about the cross being a war memorial. Up until the cross was declared unconstitutional on public land, there was no indication whatsoever that it existed as a war memorial. Everything that exists now as a memorial was added after the judge’s decision in 1989.
The legal standing issue
In the summer of 2006, I got a phone call at work. “Steve? It’s Phil Paulson. I’m dying.”
He said he needed someone to take over the case. He had cancer and only a few months to live. If no one took the case when he died, the case would die with him.
Sometimes, opportunity knocks; sometimes it breaks down the door like a DEA raid.
Phil’s death came at the start of a huge flurry of activity around the cross. The first hurdle to me taking over Phil’s case was the issue of my standing. I had to be able to demonstrate to the court that I had standing at least equivalent to Phil’s.
Standing is probably the biggest obstacle we face now with any state/church separation issue. By questioning standing, courts are quite literally denying citizens’ access to the judicial system and inhibiting their ability to right a constitutional wrong. Let me put that another way: If courts deny standing on a constitutional state/church issue, they are at the most fundamental level denying our right to redress the government for grievances. If, in 1989, Phil Paulson had been subjected to the same level of qualification for standing that he would be now, this case would’ve never seen the light of day.
So I’ve had to tell the court that I feel left out. When I see the cross, as a veteran who is not represented, I have to say I feel that I can’t enjoy the park because the cross is there. I have to be able to demonstrate some kind of harm.
But it’s really the Constitution that’s harmed. And in that sense, we are all harmed. It is disturbing that the courts are inhibiting citizens’ ability to right constitutional wrongs by denying access to those very same courts. If an average citizen can’t bring these cases, who will?
This is my statement to the court in an answer to an interrogatory:
The presence of the cross makes me feel as if I’m a second-class citizen. A clearly Christian symbol sits atop one of the most significant geographical features of San Diego with the full acquiescence and encouragement of the local — and more recently, federal — governments.
That feeling is reinforced by statements by city officials, such as when then-Mayor Maureen O’Connor declared in an interview with TV reporters “San Diego is a Christian city.” To put this in context, imagine the outrage if the mayor had said “San Diego is a White city.” Implicit in those kinds of comments, and in this case represented by the cross, is an official position of exclusion toward a minority group.
If the Mount Soledad Memorial is to be viewed from the perspective of a tribute to veterans, which of course it wasn’t until 1989, the presence of a Christian cross, absent any other religious symbols, sends a clear message that the service of Christian veterans is more significant than that of those with differing beliefs.
This is not so much about how the existence of a cross on a mountaintop harms one particular individual or a group. It is about the harm done to the Constitution of the United States and the Constitution of California by the unconstitutional and conspiratorial actions of public officials and legislators who enacted a law with the express purpose of maintaining a Christian symbol. In other words, Congress plainly made a law respecting the establishment of religion and in so doing violated my First Amendment rights.
Meanwhile, the city decided to donate the land beneath the cross to the federal government. U.S. Reps. Duncan Hunter and Randy Cunningham facilitated that by slipping a rider into the 2005 budget, designating it as a federal war memorial. After that bill was signed into law in December 2004, the San Diego City Council declined to donate the property on the advice of the city attorney, who publicly stated that the move would violate the state and federal constitutions.
The donation question was then submitted to the voters as Proposition A, which was approved by 76% of the vote, but a state court enjoined its implementation.
While the appeal of the state court injunction was pending, a federal district court order directed the city to remove the cross within 90 days or pay a daily fine of $5,000. The city appealed and sought a stay, pending appeal, which the 9th Circuit U.S. Court of Appeals denied. Justice Anthony Kennedy of the U.S. Supreme Court then overruled the 9th Circuit, granting the city’s stay application.
In June 2006, Hunter and fellow Republican Reps. Daryl Issa and Brian Bilbray introduced H.R. 5683, which proposed to seize the land beneath the cross by eminent domain. The House approved the bill 349-74 and the Senate by unanimous consent.
The act authorized the land transfer, “In order to preserve a historically significant war memorial designated the Mount Soledad Veterans Memorial in San Diego, Calif., as a national memorial honoring veterans of the United States Armed Forces.” The federal government took possession in August 2006. It’s now managed by the Navy.
It’s interesting that the cross is maintained by the Navy. Those of you familiar with the Navy will recall the mantra, “If it moves, salute it; if it doesn’t, paint it.” Yet recently when the cross needed to be painted, the Navy was nowhere to be found. A local contractor stepped up and took on the project. To his credit, he donated his time and materials and put a fresh coat of paint on the cross and, frankly, for a big ugly concrete replica of the execution device, it looks pretty good.
Phil and I both filed temporary restraining orders to stop the land transfer, but the motions were denied for — guess what? — lack of standing. But I now have a piece of paper that says, “Steve Trunk v. George W. Bush, Donald Rumsfeld and Does 1-100.” It’s one of my proudest possessions. Yeah, I took out a restraining order on W! I was kind of disappointed that it wasn’t the sort of restraining order you get for an ex-spouse. I wanted to be able to call, “Hello police? Um, yeah, he’s invading another country. . .”
Until this point, the ACLU had not been involved. It was being handled entirely by Jim McElroy of the Southern Poverty Law Center. Once this literally became a federal case, a group called the Jewish War Veterans got involved. It’s one of the oldest active veterans associations around. It dates to the Civil War and is self-described as a group that “engages in extensive advocacy of religious liberty.” I want to put that on my résumé. Once the ACLU brought in their big guns, the court combined my case with the Jewish War Veterans and two other litigants who are Muslim.
Back to federal court
Once the cross, the memorial and the land under it became federal property, there was a flurry of legal activity and motions that sought to relieve the city of any legal burden. The city of San Diego was cleared and the case moved to the federal level.
U.S. District Judge Larry Burns (who coincidentally is presiding over Jarod Loughner’s case in the Tucson, Ariz., fatal shootings that injured U.S. Rep. Gabrielle Giffords) issued the ruling that the 9th Circuit overturned. Burns decided that the cross, because there are so many of them around, was a secular symbol and therefore not subject to the Establishment Clause, the Free Exercise Clause or No Preference Clause of the California Constitution. I always said, if I were a Christian, I would be really upset at this ruling because a judge just took the preeminent symbol of my religion and made it just another logo.
So fundamentally, what the 9th Circuit has ruled, is that this particular cross is in fact a sectarian symbol.
It is, by any reasonable definition, the preeminent symbol of Christianity, and is, by orders of magnitude, the dominant feature of that memorial. But the court saw a sectarian symbol even though Reps. Issa and Bilbray and Sen. Jeff Sessions, R-Ala., had clearly indicated the purpose of their bill was preservation of the cross on federal land. I believe they ruled that narrowly to reduce the potential for an appeal. The case now goes back to federal district court to find a remedy.
The Thomas More Law Center and Mount Soledad Memorial Association have filed a motion for an en banc hearing before the full panel of the 9th Circuit.
What’s it like having your name on a case like this? Phil Paulson had earned the unenviable title of “most-hated man in San Diego” and was given a new first name. Whenever there was a news report that involved Phil, he was always referred to as “Atheist Philip Paulson.” I, fortunately, have the option to let the ACLU attorneys take the heat.
Have I received death threats? Not directly, but find any article about the cross in any blog and imagine reading the Crank Mail in Freethought Today. And they’re all addressed to you. That’s what it’s like to read the comments section in your daily newspaper. Our very own right-wing radio talk show host Roger Hedgecock has called for the wholesale roundup and execution of atheists.
I’m pretty secretive about my involvement with this case. There’s one person where I work — I go to his cube, and he’s got maybe a dozen pictures of the Soledad cross hanging up. I’m there working on his computer, all the time wondering, does he know who I am? How would he react if I told him?
On the other hand, when the issue does come up, I’m upfront about it. Actually, I found most people are generally supportive even if they don’t particularly agree with my position. I just say something along the lines, “You know how NRA members are about the Second Amendment? I’m that way about the First.”
They usually respond with something like, “You do know that the phrase ‘separation of church and state’ is not in the Constitution, right?” To which I reply, “Neither is ‘right to privacy,’ but are you going to deny you have one?”
The critics often ask such, no doubt rhetorical, questions like, “What’s next? You going to take all the crosses out of Arlington Cemetery?” Well, first of all, you’re thinking of the American Cemetery at Normandy, and in the case of a gravesite, while the cemetery itself may be on public land, the actual gravesite pretty much clearly belongs to the dead person.
And no, what I, and the rest of the people involved in the lawsuit, want is to move the cross from public land and quit using the sacrifice and memory of veterans to advertise your religion.
[The week after Steve Trunk delivered this speech, the 9th Circuit U.S. Court of Appeals denied an en banc hearing.]
Steve Trunk joined the Navy in 1972, served a one tour in Vietnam in 1973, got discharged, became a born-again Californian, and moved to San Diego in 1980. He has a Bachelor of Technical Education from National University and works in the IT department of a major defense contractor. Steve noted in testimony that he “served his country during the Vietnam conflict [but] I am not a Christian and the memorial sends a very clear message to me that the government is honoring Christian war veterans and not non-Christians.”