National Catholic Register

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A Cross to Bear

Battle continues over San Diego war memorial

BY STEVE WEATHERBE

Register Correspondent

May 21-27, 2006 Issue | Posted 5/21/06 at 11:00 AM

 

SAN DIEGO — San Diego Mayor Jerry Sanders and other defenders of a 29-foot cross that has loomed over San Diego since 1954 honoring American war dead have vowed to resist a court order that the City of San Diego remove it in 90 days or pay a $5,000-a-day fine.

They’ve been resisting for 17 years, ever since the same federal district judge, Gordon Thompson, first ruled in favor of a suit brought by Vietnam War veteran and atheist Philip Paulson that claimed the cross was unconstitutional.

“It is now time, and perhaps long overdue, for this court to enforce its initial permanent injunction forbidding the presence of the Mount Soledad Cross on city property,” the judge stated May 3.

The ad hoc interfaith (and non-faith) alliance, San Diegans for the Mount Soledad National War Memorial, disagrees. Chairman Philip Thalheimer said the issue for him, as a practicing Jew, and for Muslims, Sikhs and Christians in the group, was “the ability of people to express their faith in the public square.”

“I am the son of Holocaust survivors, and so I know that in Germany before the Nazis sent the Jews to the camps they first went round aggressively tearing down on the symbols of the Jewish religion from public places for several years,” Thalheimer said.

There are several legal options still open, says the group’s pro bono legal adviser Charles LiMandri, who works for the Thomas More Law Center, a Catholic public interest advocacy organization based in Ann Arbor, Mich.

“We are looking at several options,” Said LiMandri, “asking President Bush to take the land under the federal government’s powers of eminent domain; again offering our services free of charge to San Diego in the appeal if they should choose to further contest the matter.”

Christians Mobilize

San Diego Christian activist James Lambert has already launched an appeal to Bush, according to a May 8 story on the Agape Press Internet news service. “We are asking Christians all over the country to contact and e-mail the president,” Lambert said.

For several years the defenders of the cross have sought to transfer ownership to the federal government, an approach Congress and the president endorsed through legislation passed in 2004 permitting such a transfer. Federal jurisprudence, said LiMandri, is more permissive of church-state overlaps than California state law.

LiMandri says six recent federal court rulings supporting displays of the Ten Commandments highlight several factors weighing in favor of Mount Soledad’s cross: It was paid for privately; it is not in or near a public building; it has been on site for 54 years; and it is accompanied by such secular symbols as flags and memorial plaques for individual soldiers.

LiMandri also speculated that should the case eventually find its way to the Supreme Court, the recent addition of Samuel Alito should reinforce the court’s sympathies for the presence of Christian symbols in public.

California is a different story, however.

California was founded by Catholic missionaries and historically and culturally the state has a distinctly Catholic presence,” says LiMandri. “But since the Second World War we’ve seen the development of a virulent anti-Christian and anti-Catholic bent.”

The move to transfer the land to the federal government was rejected by San Diego City Council, but after Thalheimer’s group gathered 100,000 signatures in the course of three weeks, council agreed to put the matter on the 2005 civic election ballot.

Paulson’s attorney, James McElroy, sought an injunction to stop the vote. Instead of ruling on the constitutionality of the vote, San Diego Superior Court Judge Patricia Yim Cowett ruled that it needed a two-thirds vote to succeed.

But after the proposition to give the land to the federal government passed with an overwhelming 76% support from voters, Cowett ruled that the transfer was unconstitutional, since it was religiously motivated. Her ruling prompted McElroy to ask Thompson to reissue his federal court order.

San Diego council has already appealed the Cowett ruling, and May 21 it is scheduled to decide whether to appeal the order to remove the cross as well. If the city decides not to appeal, the Thomas More Center might intervene on behalf of San Diegans for the Mount Soledad National War Memorial to seek a stay of Thompson’s court order until the appeal of Cowett’s decision on the land transfer is heard.

“Seventy-five percent of the voters said they thought it was extremely important,” Mayor Sanders told the San Diego Union-Tribune. “I think we need to go to an appeal.”

Paulson’s attorney James McElroy interpreted that vote differently.

“An earlier proposition calling for the cross to be moved 1,000 yards to a church got 60% support on an earlier ballot,” he said. “What San Diegans are saying in both votes is that they want the matter ended and their taxes no longer being spent on it. It’s a wedge issue between Christians and non-Christians and San Diegans just want to see it go away.”

McElroy insisted the cross violates federal law as well as state law and dismissed the effort to move the cross into the federal arena as just another delaying tactic.

“I don’t think it will ever get to the Supreme Court but even if it did, I don’t think the Supreme Court is going to overrule the state constitution,” said McElroy.

Citizen Support

Thalheimer’s citizens’ coalition has offered to assist the city with its legal costs and LiMandri has also offered legal assistance. However, when LiMandri earlier assisted the city on the land transfer vote, McElroy charged that the city’s use of a Catholic attorney in the cross case was similar to hiring a Ku Klux Klan lawyer in a racial discrimination suit.

LiMandri promised to continue to help out on the case, whether the city formally requests his services or not, in order to protect the democratic and religious freedom rights of San Diego residents.

Said LiMandri, “I would still work behind the scenes with them.”

Steve Weatherbe is based in

Victoria, British Columbia.