President Bush is free to sign legislation that will immediately transfer ownership of the 43-foot Mount Soledad Cross from the city of San Diego to the Department of Defense, U.S. District Court Judge Barry Moskowitz ruled earlier today.
The judge said he wasn’t able to rule on the constitutionality of the transfer because it has yet to occur. However, he said he will consider whether the transfer, and possibly the cross, is constitutional in a hearing tentatively scheduled to be held next month. The move opens a new chapter – and new case – in the legal drama that surrounds the cross.
“This is a matter of public concern so it should get priority,” Moskowitz said.
Bush, who expressed his support for the legislation shortly after it was passed by the House in July, is scheduled to make the transfer official on Monday during a 1 p.m. signing ceremony at the White House. Reps. Duncan Hunter, R-El Cajon, Brian Bilbray, R-Carlsbad, and Darryl Issa, R-Vista, who co-authored the legislation in June, are all expected to attend.
The legislation would transfer the cross, the veteran’s memorial at its base and the surrounding 173-acre parcel land, from the city to the Department of Defense.
The judge made his decision this morning, after hearing last minute arguments from James McElroy, the attorney for Philip Paulson, an atheist and Vietnam veteran who touched of the 17-year legal challenge surrounding the presence of the cross on government land.
McElroy and Paulson have won every legal contest throughout their battle, arguing that the location of the cross violates the separation of church and state provisions of both the California and U.S. constitutions. Moreover, they have successfully argued in the past that the efforts of city officials and other politicians to prevent the cross from being removed amount to an unconstitutional preference by governments for one religion over another.
Moskowitz rejected McElroy’s claim that the First Amendment rights of Paulson and co-plaintiff Steve Tunk, also an atheist and Vietnam veteran, would receive “a new slap in the face from a much bigger hand” if the cross is transferred to the federal government.
The judge said the argument lacked merit because, regardless of his ruling on the transfer, the cross will remain atop Mount Soledad until the Ninth Circuit Court of Appeals weighs in on the city’s appeal of a different federal judge’s order to remove the cross.
“If there is irreparable injury to your clients First Amendment rights, what are another couple of months after 17 years?,” Moskowitz asked. “Until the Ninth Circuit rules, the same irreparable injury is going to happen to your clients no matter how I rule.”
Proponents of keeping the cross atop Mount Soledad say the transfer will radically alter the legal playing field on which the legal battle has so far been fought.
By shifting ownership of the cross into federal hands, they hope to render moot the ruling currently before the Ninth Circuit – as well as a Superior Court Judge’s ruling – that the cross violates the state Constitution, which strictly limits religious expression on government property.
If that effort succeeds, San Diego’s controversial cross will be considered by federal courts under the U.S. Constitution, which many believe provides more wiggle room for such displays.
Representatives from the U.S. Attorney General’s Office in Washington D.C. weighed in via teleconference to argue that Moskowitz lacked the authority to prevent the president from performing his duties but could rule on the law after it passes.
A representative for the U.S. Attorney General’s Office told Moskowitz she wasn’t positive that the transfer could be reversed if it is later found to be unconstitutional, but said she thought it was likely.