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Will Battle Over Mount Soledad Cross Continue In Supreme Court?

The Mt. Soledad Cross and Veterans Memorial is pictured in this undated photo.
Sandy Huffaker
The Mt. Soledad Cross and Veterans Memorial is pictured in this undated photo.
Will Battle Over Mount Soledad Cross Continue In Supreme Court?
GuestsDan Eaton, is a San Diego attorney with Seltzer Caplan McMahon Vitek Keith Taylor is past president of the San Diego Association for Rational Inquiry

CAVANAUGH: This is KPBS Midday Edition. I'm Maureen Cavanaugh, it's Monday, June†11th. Our top story on Midday Edition, a of headline making decisions are expected very soon from the U.S. Supreme Court, long, waited decisions on healthcare reform and SB1070 may be released as soon as next week. One issue we were waiting for today regards whether or not the Court will take up the issue of the cross on top of mount Soledad. And all of the Supreme Court issues take place against a backdrop of skepticism toward the Court. Dan Eaton, welcome to the show. EATON: Thank you very much, Maureen. CAVANAUGH: Keith Taylor is past president of the association for rational inquiry. TAYLOR: Thanks for coming in. CAVANAUGH: What happened today at the Supreme Court? EATON: Today was the Court that didn't bark. The fact is that we are waiting for some major rulings, including on the issues that you mentioned, the Arizona immigration law, the patient protection and affordable care act, as well as the valor act, which is so important to people in San Diego. But instead what the Court did was it issued two rulings that while very important to the parties really don't have the sort of sizzle that we were expecting for the major decisions. One concerned the scope of federal employees' right to challenge his termination. And another a death penalty issued to Kentucky state court. But again, not the cases we were really waiting for. CAVANAUGH: Remind us about those cases in which there's an awful lot of anticipation. It's a big month for the Court. >> It really is. And traditionally, as regular listens to the show will know, the Court saves the boast for last, so to speak. And the stolen valor act case, which is a law come prohibits you from bragging about Congressally issued medals. And the question is whether that is a constitutional law, whether you can be criminally punished for bragging about your medals. Then you have the Arizona law, which deals with what the police must do in checking the immigration status of those whom it stops, whether they're here lawfully. And then you have the big daddy of them all, which is the challenge to the healthcare law, specifically the individual mandate, and whether the Court will strike down only the individual mandate, the entire law, or whether the Court upholds the law. CAVANAUGH: What about the mount Soledad cross? Is there some decision that the Court will issue on that? EATON: Well, a decision to decide or not to decide. The Court -- the 9th circuit court of appeals which is a lower federal appeals court, in early January of 2011 issued a ruling saying that mount Soledad memorial sight could not stand because of the prominence of the cross. And the U.S. Supreme Court is deciding whether to take that case. In the Thursday conference, the justices will decide whether to take that case. And we expect that the Monday after that the Court will issue a decision whether it will actually hear the appeal or allow the ninth circuit ruling to stand. CAVANAUGH: Is this the first time the Soledad issue comes before the Supreme Court? It feels sort of like we've been here before. EATON: Well, literally been here before. My very first parency of this show, called these days, in 2006, justice Anthony Kennedy issued a ruling staying or suspending an order issued by a San Diego federal judge that would have fined the City of San Diego $5,000 for every day the cross remained up. That was the first major time the Court got involved. Now here we are in the Supreme Court again. CAVANAUGH: People like Keith TAYLOR, my guest, 2006 is just yesterday when if comes to this case. You've worked on a biography of the first purpose who challenged mount Soledad. Did anyone envision this legal battle would last this long? TAYLOR: Well, I didn't, and Phil of course died shortly some time back. But no, I don't think anybody expected it was going to go dragging on forever. The decision was made, and the judge ruled, and the appeals court has upheld the decision. And then we have had all of these little things. We gave it first place, that decided to move it somewhere, and that was agreed upon by city vote. And then the pastor of a church who was going to take the cross near where it is off of city property, which would have pleased everybody, presumably, backed out, and the cross is still there. The federal government has taken it over at the urging of our local Congress people, Bilbray, and Hunter. Now it's federal property. And I guess after it was a different -- a different view of the things. CAVANAUGH: What are the main reasons the plaintiffs in this case have battled so long and so hard against the placement of this cross? TAYLOR: Well, it was a pretty easy battle. Phil Paulson, and Howard Kreisner, neither of them lawyers, simply filed the suit. They carried out the suit without legal representation. Although I think they had some help from the local attorney named Irons, but they essentially did it without representation. And they prevailed. And that would look like it was going to be it. CAVANAUGH: And here we are twenty years later. TAYLOR: We have a statement on the mountain now that effectively says we're putting Christianity up there on the mountain. It appeals of course to Christians. Many jewels who would not have been able to own property in the shadow of that cross for many years until Ravel made that a part of his thing. CAVANAUGH: That was I believe the history of anti-Semitism that one judge referred to in one of these decisions that was used as one of the rationales why this is a symbol that should be removed. EATON: That was mart of the reasoning for the ninth circuit, in saying the cross as it's configured couldn't stand. But the question is whether we have a cross that includes a war memorial, or a war memorial that essentially includes a cross. In deciding that question, you have to look at what a reasonable observer would perceive by the cross, and part of the history of the surrounding area factors into what a reasonable observer perceives in its context. CAVANAUGH: It seems the city has tried just about everything to keep this cross on mount Soledad. EATON: That's where we are right now, they tried to sell the property in different ways. But on August†14th, George W. Bush signed a bill designed to preserve what it called the mount Soledad's veterans' memorial and transferred ownership of the cross from the city to the federal government, and the federal government eventually paid some amount of money for that. And it transferred ownership of the cross, and the property on which it sits. And that's where we are. And the question is whether that was a constitutional transfer, and whether the cross in its current configuration does with stand constitutional scrutiny. CAVANAUGH: Now, Keith, this cross has been up for about 50 years now. TAYLOR: And it was put up there in 1954, by miss Kelson. CAVANAUGH: So it's almost 60 years now. TAYLOR: Yeah, put up in 1954. It was dedicated on Easter suspend, not memorial day, not armistis day, as it would have been called. And it was dedicated to our lord and savior, Jesus Christ. The cross was used for a sunrise service on Easter morning, which is decidedly a religious celebration. For every year except one or two, from the time it was until Phil Paulson filed his lawsuit. But the first memorial was put up there after the lawsuit was filed. And when it looked like they were going to prevail. CAVANAUGH: At this point, a lot of people would say, look, there's a lot of people who feel strongly that this cross is part of this memorial to war veterans and is a city landmark by now. What do you say? TAYLOR: Well, I say it's a memorial to those whdo are Christians. There are a lot of us who aren't. I'm not anything. I am the supreme doubter of this whole thing, and I'm not a Christian. And the Jews simply are not -- specifically not Christians. And then there are others. So does the minority have any protection or have any right to say in this thing? CAVANAUGH: Let me ask Dan, what options do the justices have now? If they don't take on the case this week, is it over? EATON: No, it doesn't. Let me point out, Keith's discussion of the history doesn't really take into account the full history of the cross, the original having been burned down. But that aside, the justices could let the 9th circuit ruling stand. But the 9th circuit doesn't say there can't be a cross on that side. It says in its current configuration that what is there now cannot stand. But the justices could decide to accept review of the ruling and thin decide the merits of whether the cross is allowed to stand or whether it must come down. CAVANAUGH: As I said in the beginning, all of this is set against the backdrop of some increasing public skepticism about the Supreme Court. Dan, tell us about what Americans it are saying about the Court in a new poll. EATON: You're referring to a poll that was just released last week that was conducted by the New York Times and CBS that talked about Americans' attitude toward the Court, and what the poll found was that only 44% of Americans approve of the job that the justices are do. And 76% of Americans who were polled said that the justices based their opinions in part on their personal or political views. CAVANAUGH: That's sort of a sad day, isn't it? EATON: It is. The justices support it as best they can, and that is the way they decide cases. But there is some skepticism. CAVANAUGH: On does this distrust exist across party lines? EATON: One of the more fascinating findings of the poll is that actually 40% of liberals and conservatives both don't like the job that the justices are doing! And it's very interesting to see that. It'll be interesting to see whether the ideological configuration that we've seen in these rulings retains that general hold. Or whether you will see some blending of ideological views in the rulings coming town. CAVANAUGH: Keith TAYLOR, you've been on this Soledad issue for such a very long time. If indeed a decision is made either by the Supreme Court not taking this case or not taking it, if that cross is ever taken down, who do you think it's a victory for? TAYLOR: Well, I'd say Phil Paulson. My suggestion, perhaps tongue in cheek a little bit, I wrote a column for voice of San Diego, was that they should take it down and put a statue of Phil Paulson up there. I don't think that would are very popular. He called himself the most hated man in San Diego for filing the case. CAVANAUGH: Even posthumously, these the one who would be able to declare victory in this? TAYLOR: I think so, and I would be glad to join him in that, yes. It would be a statement that we cannot Ltd. Religion impinge on our politics that must. And politics has stuck their nose right in the middle of this thing. George Steven says they're trying to take away "our symbol." And this was going on under the city attorney prior to Mike Aguirre, who really designed it up along the lines of this is our symbol, and gives us hope, and so forth. CAVANAUGH: Well, we'll have to see what the Supreme Court does, and what the next step in this very long case is. EATON: There are competing views, and that's why we have the Supreme Court! CAVANAUGH: Indeed, yes. TAYLOR: I would say a prayer, fish give to that. [ LAUGHTER ] CAVANAUGH: Past president of the San Diego association for rationale inquiry, and Dan Eaton, San Diego attorney, thank you both very much for speaking with me. EATON: Thank you, Maureen. TAYLOR: Thank you, Maureen, it's been a pleasure.


Ninth Circuit Court of Appeals opinion on Paulson v. City of San Diego

The U.S. Supreme Court is expected to announce soon whether it will hear the decades-old case on the Mount Soledad cross. The issue involves religious symbols on public land.

But San Diego attorney Dan Eaton told KPBS Midday Edition we've been here before.

"Six years ago to the day, Justice Anthony Kennedy issued a ruling staying or suspending an order by a San Diego federal judge that would have fined the city of San Diego $5,000 for every day the cross remained up. So that was really the first major time the court got involved," he said.

Last year, the Ninth Circuit Court found that placing the cross on government land was unconstitutional. But supporters of the cross appealed to the Supreme Court.

"And now we're back to the future," Eaton said. "We are back to the Supreme Court again deciding whether the court will consider the Ninth Circuit ruling."

A flurry of headline-making decisions are expected soon from the Supreme Court. Decisions on health care reform and Arizona's SB-1070 may be released as soon as next week.

All of these Supreme Court issues take place against a backdrop of increased public skepticism toward the court.