Federal Court Rejects San Diego's Effort to Preserve Cross on Public Land

June 25, 2002 12:00 am

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SAN DIEGO — The American Civil Liberties Union of San Diego emerged victorious today when a federal court of appeals ruled that San Diego violated its state constitution when it gave unfair advantage to a religiously oriented veterans organization in the sale of a city-owned park.

Today’s ruling is the latest chapter in a decade-long legal dispute over a 43-foot-tall, 24-ton Christian cross which sits atop San Diego’s Mt. Soledad. The issue addressed by the court in today’s ruling was whether the city’s auction of Mt. Soledad Park, which resulted in the purchase of the land by the Mt. Soledad Memorial Association, was structured in a way that unconstitutionally favored organizations seeking to preserve the cross.

“The deck was stacked in favor of preserving the cross from the very beginning,” said Jordan Budd, Legal Director of the ACLU of San Diego. “After almost a decade of adverse court rulings, it is past time for the city to end its entanglement with the Soledad cross.”

In 1991, District Court Judge Gordon Thompson ruled that it was unconstitutional for the city to maintain the cross and ordered the city to come up with a plan for complying with constitutional requirements that government not support or show preference for religion.

The city then attempted to save the cross by selling the postage-stamp-sized parcel of land beneath the cross to the Mt. Soledad Memorial Association. That effort was nullified by Judge Thomas, who said in a September 1997 ruling that the sale was a ploy “to save the cross from removal or destruction.”

After that scheme failed, the city solicited bids on a one-half acre parcel of land beneath the cross. Potential buyers were required to meet a set of requirements virtually guaranteed to give the Association an insurmountable advantage and to ensure that the cross remained in the middle of the park. Specifically, the bidding guidelines required buyers to maintain the space as a war memorial and to demonstrate their experience in performing such a task. The city also retained absolute authority and discretion to reject any and all bids regardless of the reason.

Not surprisingly, the Association – which built the cross at the city’s request in 1952, has maintained it ever since, and is committed to keeping it in the park — was awarded the property.

The auction was approved by Judge Thompson and by a three-judge panel of the Ninth Circuit, but because of the importance of the issues in this case, the Ninth Circuit decided to set aside the decision of the three-judge panel and re-hear the case.

Today, an 11-judge panel ruled that because prospective buyers not wanting to preserve the cross would have to bear the additional cost of removing it, the auction gave a financial advantage to those who would keep the cross. In addition, the court said that the city had designed the transaction to ensure that preserving the cross was the ultimate outcome.

“As a result of today’s ruling, the city will now have to devise a new plan that is fair and equitable to all parties, whether or not they plan to retain the cross,” said James McElroy, co-counsel for the ACLU of San Diego.

“The city might want to start thinking about ending this drain on taxpayer dollars through interminable litigation and come up with a creative solution, such as giving the cross to a local church and leaving the park for all to enjoy,” McElroy added. “We would be happy to sit down with them to brainstorm solutions that are both practical and constitutional.”

The ACLU of San Diego and McElroy brought the case on behalf of Philip Paulson, a resident of San Diego.

The case is Paulson v. City of San Diego, United States Court of Appeals for the Ninth Circuit, Case No. 00-55406.

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