The cross was erected on city property in the 1950s as a tribute to veterans from both world wars and the Korean War. It was uncontroversial until 1989, when Mr. Paulson and his supporters sued to have it removed from public land. In 1991, U.S. District Judge Gordon Thompson ruled in their favor. So the city decided to sell the land to a private organization. In 1992 more than two-thirds of voters approved of the sale, and in 1998 it went to the highest bidder–a group that planned to keep the memorial intact.
Mr. Paulson, indicating that his beef is with the cross and not just its presence on public property, went back to court to block the sale. The Ninth U.S. Circuit Court of Appeals obligingly ruled that selling the memorial violated the state constitutional prohibition on state-sponsored religion because it unfairly discriminated against any potential buyers who would have had to bear the burden of pulling the cross down.
Frustrated local voters fought back, and last year 76% of them approved Proposition A, authorizing the city to donate the memorial to the federal government. They were shot down again, this time by Superior Court Judge Patricia Yim Crowley, who invalidated the vote on the ground that it violated state law by showing preference for a particular religion.
The one judicial reprieve in this case came from Supreme Court Justice Anthony Kennedy, who last month stayed a U.S. district court order fining San Diego $5,000 for each day that the cross remained standing–giving Congress time to pass the eminent-domain transfer. Mr. Paulson is now trying to block that transfer. If the case reaches the Supreme Court again, we hope that Justice Kennedy’s colleagues share the democratic view that the people of San Diego should be allowed to keep their cross.
Every time this issue has come before the voters, they overwhelmingly vote to keep it– and our challenged at the court level. The latest move by Congress to use eminent domain to buy the land and make it a federal memorial should be the final say– but we do not know what the courts will do. And that is the problem. We have become a nation that has a vote and a voice that is continually told that they are wrong by non-elected individuals.
If you’re long time readers, you will know that I’m definitely in the camp that we are a republic, not a democracy, but even a republic means that the people have representatives of their chosing– and the judges declare what our representatives pass. In this case, Mr. Paulson should be told to stop wasting his time and to find another route to wherever he is going that is causing him to see this cross and be offended.