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At Cross Purposes

Church and state collide with a cross on government land. The Mount Soledad cross has been the subject of legal battles for almost two decades.


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SURROUNDED BY concentric walls displaying more than 2,000 granite plaques that recognize both living and dead veterans, the Mount Soledad cross in La Jolla stands on the highest coastal summit in Southern California. Panoramic views of the city, the Pacific Ocean and mountain ranges to the east and north have made the spot a tourist attraction. To many Christians and non-Christians, the towering cross is a historic landmark, a symbol of sacrifice, a memorial that pays tribute to the men and women who’ve served our country.

But nearly 20 years ago, when its constitutionality came into question, the cross became the subject of controversy and litigation that will not go away.

In 1989, atheist Philip Paulson sued the city of San Diego. Represented by Del Mar–based lawyer Jim McElroy, he declared the cross violated the First Amendment. To Paulson, who served in Vietnam, the Mount Soledad cross was an insult to all non-Christian veterans who fought for our flag. McElroy, a lawyer passionate about civil rights, supported his client because he felt the cross implied the government showed a religious preference.

“Phil Paulson was one of San Diego’s most hated people after he filed his lawsuit,” says McElroy. “He and I received hate mail and death threats often. I lost clients because I was the attorney who ‘wanted to tear down the cross.’ Not true—I just wanted it moved off government land. Phil was, in a sense, a lot like Rosa Parks. He stood up for something he believed in, against great odds.”

In life-and-death circumstances, some seek and find comfort in the words and symbols of religion. Paulson, raised a Lutheran, was not among them. His reaction to the killing fields of Vietnam was anger with the God of his childhood, and after his first month of war, he became an atheist.

At 18, Paulson enlisted and served in Vietnam as a combat paratrooper. He was ordered to “search and destroy” in a jungle thick with malaria-carrying mosquitoes, blood-sucking leeches and razor-sharp bamboo booby traps. Paulson watched soldiers and friends scream and pray for help before being blown to bits. An absence of mercy and reason pervaded his world; prayer, he believed, was a waste of time.

“After witnessing the dead and wounded during my first firefight, I looked up and said, ‘You sadistic God! You’re not worthy of my worship!’ ” wrote Paulson in “I Was an Atheist in a Foxhole,” his autobiographical essay. “I discovered in combat that there is no one to turn to—it’s just you that has been saving your own ass all along.”

The bloody carnage of Dak To inspired him to redefine his sense of patriotism. “To be a patriotic American is to recognize that I am also a citizen of a world community,” Paulson wrote. “After all, a peaceful Earth has no hostile boundaries.”

HISTORIANS NOTE that a cross has stood atop Mount Soledad since the early 1900s. Vandals destroyed a redwood cross, which was replaced in 1923 with a more substantial stucco structure. In 1952, when strong winds damaged that cross, the city of San Diego authorized the newly formed Mount Soledad Memorial Association to replace it with the current 20-ton concrete cross and memorial that paid tribute to Korean War veterans.

In 1991, Paulson and McElroy won their case when U.S. District Court Judge Gordon Thompson ruled the presence of the cross violated the state constitution. A plethora of calculated legal moves followed, playing out like a high-profile chess game. On two occasions, the city attempted to sell the land the cross was on, but the terms were judged unconstitutional.

Four years ago, McElroy and native La Jollan Bill Kellogg, president of the Mount Sole dad Memorial Association, worked together to negotiate a settlement. They agreed to move the cross to a nearby church; the association would continue to build and add to the memorial. The litigation would end, and McElroy offered to waive his fees.

However, the San Diego City Council rejected the proposed settlement and voted to put Proposition K on the ballot, permitting a sale to the highest bidder. The measure was defeated, and in the interim, Congressmen Duncan Hunter and Randy “Duke” Cunningham drafted a rider, which President Bush signed on December 8, 2004, designating the Mount Soledad property a national veterans’ memorial.

“A new bill was introduced, supported by Hunter, Darryl Issa and Brian Bilbray, that would transfer the half-acre circle in Mount Soledad Park and the cross to the federal government,” explains Kellogg. “Senator Dianne Feinstein authored a companion bill in the Senate proposing the same transfer. Both bills passed, and ultimately, President Bush signed legislation on August 14, 2006, which caused the ownership of the Veterans Memorial and the land it sits on to be transferred to the federal government.” Now that the cross and memorial stand on federal property, the litigation involves a new set of plaintiffs.

Last April, Deputy Assistant Attorney General Ryan Nelson of the Department of Justice defended the United States of America against McElroy, who now represents Steve Trunk, a Vietnam veteran standing in for the late Paulson, who died of liver cancer in 2006. Steve Hut, serving as co-counsel with the ACLU, represents the national branch of the Jewish War Veterans, Richard A. Smith, Mina Sagheb and Judith Copeland in the case.

Why were the Jewish War Veterans and the other individuals not heard from before? “The federal taking of the cross brought more prominence to it and to the government endorsement of the Christian doctrine—Christ’s sacrifice and the promise of the resurrection—that the cross is universally understood to symbolize,” says Hut. “Federal endorsement of Christianity by displaying a cross is, if anything, more offensive and inconsistent with the First Amendment than endorsement by some other government entity, like the city. That is why our clients only decided to bring the lawsuit when they did.”

San Diegan Maurice Eis is not a plaintiff, but he is a Holocaust survivor and Jewish war veteran who appealed to the court in a letter submitted to Hut. Eis says the cross became an issue for him when “the controversy started and they made it into a veterans’ memorial.” As he explains in his letter, “I do not know if it is a Christian monument, but it does not speak for me.”

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