High Court Rebuffs San Diego's Latest Attempt to Manipulate Sale of Cross on Public Lands

April 21, 2003 12:00 am

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SAN DIEGO–The American Civil Liberties Union of San Diego and Imperial Counties today hailed a decision by the U.S. Supreme Court to deny review of an appeals court ruling that found San Diego had violated the California Constitution when it gave unfair advantage to a religiously oriented organization in the sale of the city-owned Mt. Soledad Park.

Today’s action by the High Court is the latest chapter in a decade-long legal dispute over a 43-foot-tall, 24-ton Christian cross, which sits atop Mt. Soledad here. The ACLU filed the case, City of San Diego and Mt. Soledad Memorial Association v. Paulson, on behalf of Philip Paulson almost a decade ago. The case will now return to the District Court in San Diego, where the original constitutional challenge was filed.

“The Supreme Court ruling today confirms that the city cannot resolve its constitutional violation through a process that favors the preservation of the cross,” said Jordan Budd, Legal Director of the ACLU of San Diego. “The city must now either remove the cross or divest itself of the symbol through a fair and neutral process that neither favors those who want to keep the religious symbol nor disadvantages bidders who may want to use the land without a 43-foot tall cross in its center.”

Both city officials and the Mt. Soledad Memorial Association appealed last year’s decision of the U.S. Court of Appeals for the Ninth Circuit to invalidate an auction in which potential buyers were required to meet a set of requirements that gave the association a distinct advantage and significantly increased the likelihood that the cross would remain in the middle of the park.

Specifically, the bidding guidelines required buyers to maintain the space as an historic war memorial. The memorial association erected the cross in 1952 and has maintained the cross and war memorial at issue for the last 50 years. The ACLU had argued that requiring bidders to demonstrate their expertise in this peculiar undertaking worked to the obvious advantage of only one bidder: the Mt. Soledad Memorial Association. The city also retained absolute authority and discretion to reject any and all bids regardless of the reason. Not surprisingly, the association was awarded the cross property by the city in 1997.

The Ninth Circuit ruled that because prospective buyers not wanting to preserve the cross would have to bear the additional cost of removing it and constructing a new memorial in its place, 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.

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

Since that time, the city has employed several subterfuges in an attempt to appear to have complied with Judge Thompson’s order, while ensuring that the cross remained at its present location. These ploys include an attempt by the city to transfer a postage-stamp-sized piece of land under the cross to the association. None of the subterfuges have withstood court scrutiny.

“We hope that this seemingly endless drain on the city’s coffers will finally come to an end and that the city will accept its constitutional obligation to be impartial with respect to religious beliefs,” said James McElroy, co-counsel in the case with the ACLU of San Diego. “We renew today our long-standing offer to sit down with the city and craft an appropriate solution. We sincerely hope the city will take us up on our offer and not continue to drag this case through the courts at great additional expense to the taxpayers of San Diego.”

Judge Thompson will review the city’s next proposal for complying with his order to disentangle itself from the cross.

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