California Court Grants Partial Victory to Supporters of Mount Soledad Cross

In the recent case of Paulson v. Abdelnour, the Court of Appeal for the Fourth Appellate District of California (Division One) granted an important victory in the battle to save the Mount Soledad War Memorial in San Diego. The Court of Appeal reversed a trial court decision that invalidated the passage of Proposition A. Proposition A mandated that the City of San Diego Donate the Mount Soledad Memoral, including the cross and surrounding to land, to the federal government to be maintained as a war memorial.

Although a cross has existed on Mount Soledad in some form since 1913, the Mount Soledad War Memorial Association received permission from the City of San Diego ("City)" to erect the present cross as a memorial to fallen Korean War veterans. Mount Soledad is an 822-foot-tall hill that lies between Interstate 5 to the east and the Pacific Ocean to the west.

In 1989, Phillip Paulson ("Paulson") filed a lawsuit against the City seeking removal of the Mount Soledad Cross. Paulson claimed that allowing a cross to remain on public land violated both the California and United States Constitutions. Since 1989, numerous courts have made rulings in one form or another regarding the constitutionality of the Mount Soledad Cross.

In 2005, Congress passed a law that designated the Mount Soledad site as a national veteran’s memorial. The act providing for the designation recites: "Not later than 90 days after the date on which the City of San Diego, California, offers to donate the Mt. Soledad Veterans Memorial to the United States, the Secretary of the Interior shall accept, on behalf of the United States, all right, title and interest of the City in and to the Mt. Soledad Veterans Memorial."

The act further states that upon acquisition of the memorial by the United States, the Secretary of the Interior "shall administer the Mt. Soledad Veterans Memorial as a unit of the National Park System, except that the Secretary shall enter into a memorandum of understanding with the Mt. Soledad Memorial Association for the continued maintenance by the Association of the cross and surrounding granite memorial walls and plaques of the Memorial."

In response, the San Diego city council placed Proposition A on a special July 26, 2005, election ballot allowing the citizens of San Diego to directly decide whether the invitation offered by the federal government should be accepted. Proposition A passed on July 26, 2005, by 76 percent of the vote. Paulson challenged Proposition A in court and the trial ruled that the land proposed land transfer was unconstitutional.

The Court of Appeal reversed. In a 33 page ruling, the Court noted that nothing in Proposition A or the federal legislation mandated keeping the cross as part of the memorial. The Court also noted that the matter was decider by the voted and the Court refused speculate whether San Diego voters were motivated by secular or religious reasons.

Although Paulson recently passed away, the remaining plaintiffs could still appeal to the California Supreme Court and this decision does not terminate the federal court proceedings. However, it does bring Mount Soledad supporters one step closer to preserving a cross and war memorial that have existed for more than 50 years.