Mt. Soledad cross case ends after 27 years

After more than a quarter century of legal battles, the lawsuit over the Mount Soledad cross in La Jolla, Calif., has come to an end.

The 9th U.S. Circuit Court of Appeals on Sept. 7 ruled an end to the case because the issue is now moot — the 29-foot-tall cross (43 feet with the base) is no longer on public grounds after a private organization purchased the land.

“Once again, courts have definitively ruled that the government may not place permanent Christian crosses on public land,” said FFRF Co-President Annie Laurie Gaylor. “That’s a major victory. But taxpayers have been cheated of their view, and prime real estate, by nearly three decades of machinations by the city of San Diego, members of Congress and even the Pentagon, interceding to ‘save the cross.'”

In July 2015, the Mount Soledad Memorial Association agreed to pay $1.4 million to buy the cross and the land beneath it from the Department of Defense. It took more than a year from that point for the plaintiffs, which included FFRF Life Member and California State Representative Steven Trunk, to review the sale and other details.

Trunk testified that he was “a veteran who 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 nonChristians.”
The controversial case began in 1989 when the city of San Diego and the federal government were first involved. It traveled throughout the court systems several times, including twice to the U.S. Supreme Court.

Opponents of the cross said that it violated the Establishment Clause of the First Amendment prohibiting the government from endorsing one religion over another. Proponents said that the cross is a local landmark and a secular sign of service and sacrifice by veterans.

“I think this now resolves the case,” said David Loy, the legal director for the American Civil Liberties Union of San Diego & Imperial Counties. “The government doesn’t own the cross or the land underneath it any more. The government is no longer in the business of endorsing religion.”

The cross site initially was on land owned for decades by the city of San Diego. And it was the city that was the first defendant in the initial suit in 1989 filed by Vietnam War veteran and atheist Philip K. Paulson, who earned FFRF’s premiere Atheist in Foxhole award.

In 1991, U.S. District Judge Gordon Thompson ruled that the cross was unconstitutional and had to be moved off public land.

After that, the city tried to sell the property, but the courts wouldn’t allow that, stating that the terms of the sale were unconstitutional because they gave a preference to buyers who planned to keep it as a religious symbol.

In 2006, the U.S. Congress intervened and took the property by eminent domain, then turning it over to the Defense Department for use as a war memorial.

More litigation followed, including by Trunk, who replaced Paulson after his death in 2006. Then, in 2008, U.S. District Judge Larry Burns in San Diego ruled that the cross was not a religious symbol, but one of service and sacrifice. So again that ruling was appealed, and in 2011 the 9th Circuit ruled in favor of Trunk, saying the cross was a “distinctively Christian symbol.” Trunk earned FFRF’s third Atheist in Foxhole award for his work on this case.

Another appeal followed before last year’s sale of the property went through.
Jim McElroy, the lawyer for Trunk who has been involved in the case for two decades, said the long battle was worth it.

“From our perspective, I think I can say that after 25 years we finally got the message through, that a 40-foot, 20-ton ubiquitous symbol of Christianity on public property is not constitutional,” he told the Los Angeles Times.

Freedom From Religion Foundation