For Memorial Day: Cross Purposes in San Diego

This 29-foot, brilliant-white cross is part of a WWI/WWII/Korean War memorial on Mt. Soledad outside San Diego. The federal government took it over from the city as a historic landmark (a type of cultural property) in May of 2006, after repeated federal court orders to remove it from city land as an improper government preference for one religion over another, beginning in 1991.

The cross can be seen from freeways, public beaches, and other vantage points all over the city. Viewed out of context (as it is by any uninformed observer farther away then the parking lot), it may be a reminder of the role of Spanish missions in California history, or it may seem to announce “This is Christian territory” – reassuring to Christians, maybe not-so-much to others. Even in the context of the memorial function, it may compare any soldier’s death in the service of his or her country to Jesus Christ’s ultimate sacrifice of his life so that others could live, or it may look like “This is a memorial to Christian veterans; other veterans should go get their own.” Some atheists (some of whom were veterans, despite Fr. William Thomas Cummings’ 1942 contention that “there are no atheists in foxholes”) took exception to having their tax dollars support what they saw as a religious advertisement, and filed suit in 1989 to compel the city to either remove it or render the land on which it stood “non-public.” And many years of litigation ensued (sic).

The American Legion and Christian legal groups are launching an initiative to protect crosses on public war memorials from “secular attacks.” (You know a religious-freedom law is working when it can make even the most dominant, powerful religion in the land feel persecuted. : )) On the other hand, many of our country’s historic properties have religious connections – those of the people who made the history in the first place. What happens to the San Diego cross may affect what happens to other publicly-owned historic sites and artifacts.

Must government-supported historic preservation be confined to strictly secular subject matter? Let’s think about this. And for a change, let’s try to describe the existing law accurately.

Art. I, sec. 4 of the California state constitution guarantees free exercise of religion with “no preference or discrimination” and prohibits the establishment of a state religion. Courts have read this “No Preference Clause” broadly to prohibit even the appearance of preference for any particular religion. Furthermore, art. XVI, sec. 5 prohibits the state or any of its subdivisions (such as a city) from aiding or supporting any religious purpose or any institution controlled by a religious group. A few narrow exceptions may exist in art. 16, sec. 3 for institutions aiding the sick, the blind, and orphaned or abandoned children. This provision has also been read broadly; even short of financial support, governmental organizations in California may not "lend their prestige or power" to promote any religious sect.

Given that background, here is a timeline of legal decisions about the Mt. Soledad Cross:
1954: Private veterans’ group Mt. Soledad Memorial Association (MSMA), builds the present cross on city land with city’s permission. Construction funded privately; maintenance funding is mixed private and public. MSMA holds services there on Easter and Memorial Day by city permit; members of the public use it for the occasional wedding or baptism.

1991-93: Murphy v. Bilbray City ownership of land under cross violates CA constitution’s No-Preference Clause; if it is a war memorial, it is a sectarian war memorial appearing to honor only Christian veterans. Court order: Remove cross or sell land.

In response, the City sold a 222-square-foot “cutout” of land under the cross to MSMA, which expressed intent to keep the cross. The sale was approved by the voters as Proposition F, the “Save the Cross” proposition. The sale was negotiated and for fair-market value, but no other bids were sought.

1997: Murphy v. Bilbray Nature and process of land sale (tiny cutout, single Christian bidder) shows City preference for keeping the cross and is unconstitutional. Continued City ownership of surrounding land makes it appear to most visitors that the City still owns the cross.

The City then sold 1/2 acre around the cross in an open-bidding process. MSMA bid highest ($106,000) and was given title.

1998: Paulson brings motion to enforce injunction, complaining that sale is still unconstitutional because the City structured the bidding process to favor preservation of the cross and retained discretion to reject or accept any bid for any reason. The District Court decided this sale constitutional because of the larger area, open bidding, and MSMA’s plans to put up signs describing the land as private property.

2001: Paulson v. City of San Diego; Paulson appealed this decision to the 9th Circuit. The court held that the California constitution was no more restrictive than the Federal constitution on establishment of religion and applied the same test routinely used in similar cases under the federal constitution. The court found that the sale had a secular purpose – ending an unconstitutional government endorsement of religion by privatizing the land around the cross. The open bids were structured to neither prefer nor inhibit religion, and the state had no relationship with a religious organization except for the short amount of time and effort involved in consummating the sale. The extra boundary markers and signage planned by MSMA would prevent a reasonable person from perceiving that the cross still belonged to the city.

2002: The 9th Circuit granted Paulson’s petition to rehear his case en banc. The court held that the sale was unconstitutional: The request for bids stated that the land would be a war memorial that need not include the cross, but the cross was part of the sale, making it cheaper for organizations who wanted to keep the cross than for organizations who would have to spend extra money to replace it with a different kind of war memorial. Four judges dissented, stating agreement with the rationale of the original decision that the sale had been impartial enough to satisfy the state constitution.

2004: On remand, the District Court voided the sale, so the cross belonged to the city again. San Diego floated Proposition K, to sell the land and lease it back to MSMA, but the voters rejected it. Congress declared that if San Diego donated the Mt. Soledad site to the federal government, the site would be designated a national war memorial under federal control.

2005: The San Diego City Council adopted a resolution not to donate the site, but a citizens’ petition convinced the council to rescind it. Later, City voters passed Prop. A, mandating the donation to the federal government. The District Court invalidated Prop. A as unconstitutional for faulty city-council procedure in the face of uncertainties about who owned the land when the proposition was placed on the ballot whether the federal government (which had been decommissioning parks left and right) would maintain the site as parkland after acquiring it.

2006: District Court order in May: Remove the cross in 90 days or begin paying a $5,000-a-day penalty. In July, the Supreme Court ordered a stay . Three weeks later, Congress and the President seized the entire parkland by eminent domain, to be maintained by MSMA . The Feds would negotiate compensation, as they always must, but the City had no choice – and therefore could not be accused of any impropriety in the transfer; when one is forced, the question of whether or not one ends up enjoying it is immaterial. In November, the 9th Circuit heard the appeal anyway, ruling that it wasn’t moot because the transfer was not yet complete and the public controversy continued. The court ruled that the city’s choice to donate the land to the federal government was constitutional under the broad powers of governments to acquire and dispose of property. Requiring the city to remove the cross first would be an unconstitutional restraint on religion. Measure A was constitutional because the proposition was a neutral delegation of the decision to the democratic process, and open public debate on that decision had been going on for many years. Religious services held at the site were allowed by the City, not sponsored by it.

2007: The City’s latest appeal was declared moot because, after Congress passed the act taking the land, the City no longer had an interest. This does not mean there is no more controversy over whether crosses may dominate government-owned war memorials; it just means plaintiffs (who, the courts have acknowledged , have nothing against honoring veterans as some reports have suggested) will have to take on the federal government and prove violation of the federal First Amendment if they want to take this further.

If the cross is taken down, the site will still have plenty of other war-memorial content; the MSMA has installed many memorial stones with names and photos of individual veterans. Nor would taking down the Mt. Soledad cross mean that all the religious insignia on gravestones at military cemeteries must be eradicated, as some scare stories have suggested; even the much-maligned ACLU agrees that there’s a big difference between acknowledging the faiths of individual veterans, whatever those faiths may be, and the appearance that the government is operating “Christians-only” war memorials.

Many non-Christians feel that in a country that embraces religious freedom, they should not have to pretend to be Christian, in life or in death. Nothing necessarily against Christians; it’s just not what they are. Many particularly want to be identified with their actual beliefs if they die in the country’s service. The Department of Veterans’ Affairs is responding, though not always without resistance; it recently added the Wiccan pentacle to 38 other symbols that can be carved on headstones in military burial grounds such as Arlington National Cemetery. (Even though the DVA already offered Eckankar, Soka Gakkai, atheist, and humanist symbols, the Wiccans had an uphill ten-year battle). Veterans of future wars can thus expect to have their beliefs individually acknowledged.

So now (whew – finally!) let’s talk about historic property, and whether and when religious content can or should be edited out. beginning in 1923 , California has painted itself into a historic-preservation corner by denying all tangible or intangible support to historic properties with religious connections, such as the California missions. Religion drove a lot of California (and U.S.) history, and if we gloss that over, our understanding of history will be impaired.

True, the religions that produced the historical properties can maintain them, and many do. The disadvantage of this is that since they take financial responsibility, they are rightfully entitled to tell visitors only their side of the story. Although “history is written by winners,” exclusively one-sided histories are also obstacles to understanding. If a religiously neutral government operated a religiously-connected site, it could facilitate the presentation of multiple points of view, such as those of Native organizations that take exception to the notion that missionaries’ acts were 100% beneficial to their ancestors.

Compared to the old missions, the Mt. Soledad cross, though beloved by many locals, is not much of a historical heavy hitter (yet; ironically, the protracted conflict over it may end up enhancing its historical importance far beyond what it would have been if left alone). The 2006 9th Circuit opinion summarized the history of the Mt. Soledad site:

1913: Private citizens build a redwood cross on a 170-acre plot of city-owned land.
1916: City dedicates the land as parkland.
1923: Cross destroyed by vandals (apparently there actually were vandals in the “good old days” too)
1934: “Someone” builds a wood-and-stucco cross to replace it.
1952: Cross destroyed by windstorm (legally an “act of God”).
1954: City formally permits MSMA to build and maintain the present Latin cross as a war memorial.
The court left out the cross burned by the KKK on Mt. Soledad in 1923 after an African-American family moved into La Jolla, but it probably wasn’t up for very long. Also, it was 1989, after the first lawsuit commenced, when MSMA posted the first marker at the site identifying the cross as a war memorial; before that, it was commonly known to the public as an “Easter cross” that happened to host twice-yearly ceremonies honoring veterans.

If the strictures on public support for historical property “touched by religion” are rolled back,* there should be enforced standards for historical importance, relevance to history of the religious content, and the potential negative effects of an appearance of governmental religious preference. That last criterion probably needs some elaboration: People are most likely to worry about governmental religious bias if places they have to go to deal with the government – courthouses, city halls, police stations and vehicles, other government offices – are plastered with symbols of someone else’s religion. In those cases, they may well wonder if someone of a different faith can expect fairness from those working inside the buildings. If the symbols are in parks, or historic sites far outside city centers where religion is a pivotal part of the story – maybe not-so-much.

Link for the photo above is

* There are those who believe the government should increase support for Christian symbols wherever they appear because the Founding Fathers were Christian. Some of the same people, however, vigorously oppose government support for functions traditionally identified with Christianity, such as care of the poor and sick. My understanding of this viewpoint does not seem to get better if I pick at it; maybe someone will come along who can explain this to my satisfaction.

One thought on “For Memorial Day: Cross Purposes in San Diego

  1. “1954: City formally permits MSMA to build and maintain the present Latin cross as a war memorial.”

    There is something very wrong with this statement. The MSMA did not erect and maintain a cross in 1954 as a war memorial. The cross in 1954 was built by a religious group and dedicated to “our lord and savior Jesus Christ”, on Easter Sunday. It was NEVER referred to as a war memorial until after 1989. It was the Easter Cross for 35 years before a single reference to “war memorial” was ever made. The “Korean War” references were made retroactively simply because the cross was raised in 1954.

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