President Bush signed legislation Monday that will make a controversial cross on Mount Soledad in San Diego part of a national war memorial. No one, however, expects that fact to end a fight that is now in its 17th year.
Philip Paulson, an atheist, who says he made up his mind in 1978 to have the cross removed, swears the litigation will go on despite the action taken by Congress and the president to end it.
The story of the cross and the battle over it has periodically made the national news over the years, but mostly it has been a local story limited to a San Diego audience.
Still, the question that today cries out for an answer is this: How could this dispute have lasted for so long and still not be resolved?
The simple answer is that California has what is called a “no preference clause” in its state constitution. It guarantees “free exercise and enjoyment of religion without discrimination or preference.”
It is a short passage, but it has caused a lot of trouble.
In 1991, U.S. District Court Judge Gordon Thompson Jr., a Nixon appointee, ruled that the cross, which had been dedicated on Easter Sunday in 1954, violated the state constitution and must be removed. Importantly, Thompson did not rule on the issue of whether the display violated the federal constitution, only the state document.
That fact has kept the case alive all these years as a number of appeals made their way through the federal courts. In each appeal, Paulson and his fellow plaintiffs prevailed.
It is undisputed that when the cross, which stands 29 feet high, was dedicated it was a part of a memorial to the war dead in World War I, World War II and the Korean War. It is also undisputed that it has been known ever since as the Easter Cross.
Several attempts have been made to resolve the controversy since 1989. In recent years, voters have twice made it clear they wish to retain the cross. One transfer scheme ran afoul of the courts because of the same constitutional clause. In 1993, the city attempted to sell the land under the cross to a private foundation, but the federal judge ruled that this plan also showed a “preference” for the Christian religion and was therefore invalid.
It’s Paulson’s contention that the cross, as a part of a war memorial, honors only Christian veterans and his current attorney now says that the federal law signed by Bush “smacks of election-year politics.”
This is plain nonsense. The effort to turn the land over to the federal government began after the election in 2004 and was put into high gear in May of this year after Judge Thompson threatened to begin imposing $5,000-a-day fines on the city of San Diego.
It can easily be argued that the action taken Monday by the president is a clear victory for the American political system and for the First Amendment to the U.S. Constitution.
It can also be argued that the clause in the California constitution is simply too broad and too vague to deserve much national support. Would that clause, for example, prohibit the singing of a Christmas song in a California public school, or the mere recognition of the Easter holiday by state workers?
More importantly, why should that clause determine which memorials the federal government wants to create?
At some point the federal courts will be asked to determine whether the federal government’s decision to take over the San Diego memorial is constitutional. In earlier cases, courts have held that religious symbols may be kept on federal property as long as they also have a secular purpose.
Paulson, a man who in his writings capitalizes the word “Atheist,” clearly believes he is on the winning side. He has been offended by the cross since 1978, but so far at least this nation has refused to allow “an offended party” to trump the legitimate interests of a majority.
Were the California standard rigorously imposed on the nation, there really could be no religious symbol on public property. Because that would be a huge mistake, the federal government must now be supported as it vigorously defends its decision to adopt the San Diego memorial on behalf of all of the American people.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His column appears on Wednesdays.
