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Flap over a San Diego cross wends its way to high court

Atheist challenges monument's siting in a public park

SAN DIEGO -- Ronald Reagan had just left office, the Christian Coalition was new, ``values" had yet to become a buzzword of American politics, and six of the current US Supreme Court justices had other jobs when an atheist sued the city of San Diego for permitting a giant cross in a public park.

Seventeen years later, the 29-foot concrete monument still crowns a hill over the Pacific, defended by the city's voters and by members of Congress.

Now the Supreme Court has stepped in, and the case of the Mount Soledad cross could help determine under which circumstances religious symbols are permissible in public places.

The cross, dedicated in 1954 in honor of Korean War veterans, was erected by the Mount Soledad Memorial Foundation, a private, nonprofit group that also maintains the monument.

State and federal judges have ordered that the cross be removed, saying it represents an unconstitutional endorsement of one religion. This month, the Supreme Court blocked an order that the city take down the cross by Aug. 1, thus giving state and federal courts time to hear appeals on the matter this fall.

The high court has inched toward allowing religious symbols in public places if they have historical value or nonreligious meaning.

Two 5-to-4 rulings on separate cases involving the Ten Commandments in 2005 established hazy guidelines on what is permissible: A display inside a Kentucky courthouse was ruled unconstitutional, while a 6-foot granite monument outside the Texas Capitol was OK .

``It's pretty clear you can't display a Latin cross 365 days a year on top of city hall," said Douglas Laycock, a church-state specialist at the University of Texas law school. ``But this cross isn't at city hall, and it's been there for a long time."

Supporters of the Soledad cross called it the centerpiece of a war memorial that salutes veterans, not religion.

``The cross is the quintessential symbol of fallen soldiers in Western civilization," said Phil Thalheimer, who is chairman of the private group San Diegans for the Mount Soledad National War Memorial .

Philip Paulson, the man who sued in an effort to remove the cross in 1989, is a Vietnam veteran who says that, even viewed as a war memorial, the monument seems to exclude veterans who are not Christian.

Paulson has said he would be happy if the 20-ton monument were moved to a churchyard near the hilltop park, or anywhere else that is not public land.

``It's not an obelisk or just a flag," said Paulson's lawyer, James McElroy. ``It's a Latin cross, the most powerful symbol of one religion in the world, and it's standing in the middle of a public park like a giant neon ad for that religion."

The cross is ringed by concentric brick walls fitted with granite plaques inscribed with the names and pictures of veterans. But those features were added only after Paulson filed his lawsuit to have the huge memorial removed.

``We put up a flag and the memorial walls so that we could satisfy the court's concern that a visitor from Kansas could tell it was a war memorial and not the Christian church promoting religion," said William J. Kellogg, president of the Mount Soledad Memorial Association.

In 2004, Representative Duncan Hunter of San Diego, chairman of the House Armed Services Committee, attached a rider to a spending measure that declared the monument a veterans memorial. And this month, the House passed Hunter's bill directing the Pentagon to acquire the cross and manage it as a memorial -- a move aimed at protecting it from legal challenge. The bill needs Senate approval.

In May, Hunter asked President Bush to exercise his powers of eminent domain to declare the site federal parkland, noting that last year 76 percent of San Diego voters approved preserving the cross. The White House has not intervened but has supported Hunter's newest bill.

In blocking the removal of the cross, Supreme Court Justice Anthony M. Kennedy said lawmakers' desire to preserve the cross increases the chances the high court will eventually get the case.

It is unclear when the Supreme Court might get the case back. Appeals courts may not rule until the end of the year, probably pushing any high court hearing into the 2007-08 term at the earliest.

With the new appointment of conservative Justice Samuel A. Alito Jr., court watchers say the balance may have shifted in favor of letting existing displays stand.

``They hate these cases because they're emotional, they're controversial, and they chew up a lot of political capital," Laycock said. ``But if they have five votes, that eases the pain significantly."

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