Backers of Cross Dealt Setback

A federal appeals court has refused to reconsider a ruling that could force the city to tear down a cross atop Mt. Soledad overlooking La Jolla.

But the City Council has instructed its city attorney to continue the decade-long fight to protect the 43-foot-tall cross that the ACLU insists violates the constitutional separation of church and state.

The U.S. 9th Circuit Court of Appeals ruled in June that the city’s stratagem to preserve the cross by selling the property beneath it to a private, nonprofit group was unconstitutional because the auction favored groups pledged to keeping the cross intact. In a decision revealed Wednesday, the same court refused to reconsider its earlier order.

“The taxpayers might want to ask their city leaders how much of their money they intend to spend resisting the court’s rulings,” said San Diego attorney James McElroy, representing plaintiff Philip Paulson, an atheist and Vietnam veteran.

But City Atty. Casey Gwinn said the City Council, in closed session, instructed him to fight it to the U.S. Supreme Court. Gwinn noted that the San Francisco-based 9th Circuit Court of Appeals, considered by many legal scholars to be the most liberal in the country, is often overturned by the Supreme Court.

Gwinn said the Mt. Soledad Memorial Assn., which bought the land from the city, has spent $1 million improving the site, which is maintained as a war memorial.

Also, Gwinn said, 6,000 families have bought individual plaques honoring family members who died during military service.

“The issue is not just the cross,” Gwinn said.

“The issue is the 1st Amendment rights of 6,000 families who are honoring their loved ones,” Gwinn said. “This fight is not over.”

Erected in 1952, the cross enjoys enormous political support in this military city.

Still, the ACLU has claimed that the cross is not simply a war memorial but a Christian symbol and thus inappropriate for public land.