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Saturday, September 03, 2005 | Proposition A is unconstitutional and may violate the First Amendment, Superior Court Judge Patricia Cowett ruled Friday.

The proposition, which voters passed by almost 76 percent in a special election July 26, calls for transferring the Mount Soledad Cross and the land it sits on to the federal government.

Cowett’s decision states that such a transfer of the cross by the city of San Diego would violate two provisions of the California constitution and she also suggested a violation of the First Amendment. The judge issued a temporary restraining order barring the city from transferring the memorial to the federal government.

The judge’s decision called the issue “ripe for resolution.”

“Based on the consistent, repeated, and numerous references to saving the cross as the basis for deciding whether to donate the memorial to the United States, one conclusion is inescapable: this transfer is again an unconstitutional preference of the Christian religion to the exclusion of other religions …,” the decision says.

This, Cowett argued, violates the California constitution.

“The city’s attempt to go so far as to transfer away valuable land for no compensation for the purpose of saving the cross is also an unconstitutional aid to the Christian religion,” the decision says.

James McElroy, who represents Philip Paulson – an atheist and veteran who made the original complaint against the cross – said the decision was somewhat unexpected. He was clearly triumphant at the decision, but lamented that the issue had come this far.

“I’m sorry that the city had to spend tons of taxpayer money to have this stupid election,” he said. “Everybody in their right mind knew it was illegal in the beginning.”

Attorney Charles LiMandri of the Thomas More Law Center, who represents groups in favor of keeping the cross on Mount Soledad, said he had not yet seen Cowett’s decision, but said that in any case she should not be ruling on this issue.

“We believe she’s wrong,” he said. “It doesn’t even fall into the California constitution. It’s a federal statute, it should fall under the federal constitution, under the United States constitution supremacy clause. She really shouldn’t be ruling on this. The federal court has jurisdiction first.”

LiMandri’s view that this is an issue for the federal courts is based, he said, on the premise that the federal government should be represented at hearings since it now has an interest in the memorial.

As for McElroy’s comments, LiMandry described them as “the same old nonsense we’ve heard from him all along.”

City Attorney Mike Aguirre expressed admiration for the actions of the judge at a news conference Friday.

“It takes a courageous judge to look 75 percent of the voters in the face and say ‘Sorry, I’ve got to protect the constitution.’”

The judge’s decision is “tentative.” That means the judge retains the option to change her mind after hearing arguments from attorneys. Berwanger said Cowett has set a hearing for Oct. 3 to allow counsel to make such arguments.

The question is whether anyone will make such an argument.

Please contact Will Carless directly at will.carless@voiceofsandiego.org with your thoughts, ideas, personal stories or tips.

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