Ownership Question Central to Mt. Soledad Cross Controversy
by Allie Martin and Jenni Parker
September 17, 2004
(AgapePress) - The Thomas More Law Center is challenging a private deal between an atheist and a veterans group to remove a 43-foot cross from atop a California mountain where it has stood for 50 years.The cross was erected on land on top of Mount Soledad in San Diego in 1954 to honor military veterans. But in 1989, atheist Phillip Paulsen filed a lawsuit objecting to the cross. The American Civil Liberties Union assisted in the litigation to contest the religious symbol's presence on public property, and eventually a court ordered the city to remove the landmark. (See earlier article)
In response the city put the land up for public sale, but Paulsen again objected and a court ruled the sale unconstitutional. In a second attempt, also contested but this time initially upheld (and later overturned), the city sold the land to the Mount Soledad War Memorial Association. That group made several improvements to the property but, eventually, in an effort to end the 15-year dispute and avoid substantial legal fees, agreed to remove the controversial cross.
However, the Thomas More Law Center, a public interest law firm based in Ann Arbor, Michigan, filed a brief in federal court challenging the planned removal of the monument. The center's West Coast Regional office undertook the court action on behalf of a former Navy fighter pilot who had been enlisting the support of other veterans to oppose removal of the Mount Soledad cross.
But now that a federal appeals court has overturned the sale of the cross to the War Memorial Association, a new question has become central in the controversy. According to Thomas More Law Center chief counsel Richard Thompson, the main issue in the case now is who actually owns the property.
"If the Veterans Memorial Association owns it, they are a private organization," Thompson says, "so there would not be any constitutional issue involved, and they wouldn't have to remove the cross." But on the other hand, he notes, "If in fact the city owns it, then the agreement between the ACLU and the Veterans Memorial Association would have no validity at all."
The attorney points out that hundreds of people have purchased plaques that have been placed near the cross as part of a memorial. He says those individuals were promised the cross would stay in place on Mount Soledad. But unfortunately, he says, "There is an agenda by the ACLU to remove every symbol of Christianity from the public square."
Thompson laments the civil liberties group's well-established pattern of attacking visible expressions of religious faith throughout the U.S. "We see a strong history of that," he says, "where the ACLU comes in with their legions of attorneys, and threatens these municipalities, or threatens governmental entities, telling them to take down their Christian symbols or there will be lawsuits." The law center's spokesman says he was shocked by the Memorial Association's surrender to the ACLU and "to the forces of atheism that are embarked on a campaign to remove every vestige of religion from the public square."
But for the moment, the issue rests with the court. Law Center attorneys are contending that, if the veterans group were to be determined the rightful owners of the Mount Soledad land, the cross would no longer violate the Constitution, being a privately-owned entity. Furthermore, the brief suggests, in that case, to remove the Christian symbol would violate the rights of the plaque donors and memorial contributors, who were assured the cross would remain.
However, in the likelier event that the court declares the City of San Diego the rightful owner, the Law Center's brief posits that a new hearing should be held since the veterans group has improved the mountain property and incorporated the cross into the Mount Soledad war memorial. In a new hearing, the authors of the brief suggest, the court would determine whether the monument might, under these new circumstances, no longer be considered a violation of the separation of church and state.
