Crosses Spark a Constitutional Fight

The 29-foot cross overlooking San Diego and the Pacific was built 60 years ago, but people still can't agree on what it is supposed to mean.

This spring, sorting it out may fall to the U.S. Supreme Court.

To some, the striking centerpiece of the Mount Soledad Veterans Memorial is a lasting tribute to those who died fighting for the country, which is how it was described by the local civic group that erected the cross.

To others, it is a "gleaming white symbol of Christianity," which is how it was described by veterans at a dedication ceremony long ago.

The sharply conflicting perspectives—a kind of constitutional Rorschach test—capture a debate that has erupted in federal courtrooms across America about whether crosses displayed in memorials on public land violate the First Amendment's ban on the establishment of religion.

The Mount Soledad statue is one of at least four war-memorial crosses under legal fire by civil-liberty groups who want them off government land. The cross is a globally recognized symbol of Christian faith. But many veterans and others who have lost loved ones to battles or tragedy value the memorial crosses as monuments of remembrance, invested with historical weight.

"You're talking about an affirmative act of actually taking something down that's been up for quite a while," said Mark Seavey, director of new media for the American Legion, the nation's largest veterans group, referring to the Mount Soledad cross. "I don't want to engage in too much hyperbole, but it is kind of like the Buddhist statues that were blown up in Afghanistan" by the Taliban.

Daniel Mach, an attorney with the American Civil Liberties Union who represents the plaintiffs in the Soledad case, said there are other ways to honor veterans without "playing favorites with faith," as he calls it.

The controversy over the Soledad cross, which sits on an 822-foot-high hill in the coastal community of La Jolla, stretches back 25 years to when the late Philip Paulson, a Vietnam veteran and atheist, embarked on a legal battle against San Diego, which at the time owned the property.

The case's winding journey through state and federal courts led to a ruling by the Ninth U.S. Circuit Court of Appeals in 2011 declaring it unconstitutional. A lower court then ordered the statue removed. By then, the federal government had acquired the memorial site through the power of eminent domain in an effort to preserve the cross. The Mount Soledad Memorial Association is now asking the Supreme Court to intervene while the Ninth Circuit considers the group's appeal. Justices Samuel Alito and Anthony Kennedy previously have signaled an interest in reviewing it.

The Supreme Court has handled numerous cases concerning religious displays in public. But it has yet to hand down precise instructions on how lower courts should determine when crosses in public settings like war memorials violate the Establishment Clause, a part of the First Amendment that establishes separation between church and state.

To decide if one passes constitutional muster, courts generally try to put themselves in the shoes of a reasonable observer and ask whether that person would view a memorial as conveying a primarily religious or secular message. But courts have broad discretion.

A lower court, for instance, gave more weight to the secular symbols accompanying the Soledad cross, like the plaque-lined dedication walls and an American flag, and saw a secular purpose. But the Ninth Circuit judged it a "religious endorsement," noting that for much of its history it served as a site for Easter services.

Amid the legal uncertainty, other cases have piled up. An Army veteran is suing King, N.C., over the veterans' memorial it built in a public park. It features a silhouette statue of a soldier kneeling before a cross grave marker next to a Christian flag. A trial is expected this summer.

A federal judge in February ordered Lake Elsinore, Calif., to halt plans to erect a veterans memorial at a baseball park, with a granite monument depicting a kneeling soldier and cross. The city hasn't decided whether to appeal.

The American Legion says it is worried about the outcome in another cross dispute, outside of Washington, D.C., over a 40-foot World War I memorial dedicated by the American Legion in the 1920s. Mr. Seavey of the American Legion calls the cross, on a highway median in Bladensburg, Md., a "symbol of loss" honoring 49 men from Prince Georges County who died in World War I.

Steven Lowe, a retired AT&T staff manager who is a plaintiff in a lawsuit against a Maryland parks commission, doesn't see why the memorial needs religious iconography. "These people who died were not missionaries or crusaders for Christ. They were American soldiers."