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Tuesday, Aug. 15, 2006 | President Bush signed legislation Monday that immediately transferred ownership of the Mount Soledad Cross, the monument at its base and the half acre parcel of surrounding land from the city of San Diego to the federal government.
By signing the transfer Bush used his power of eminent domain to seize the property for the federal government, effectively replacing the city in the 17- year legal battle that has surrounded the fate of the 43-foot cross and handing cross supporters new hope. While proponents of the cross have declared the transfer a victory, Bush has set the stage for a new legal battle over the constitutionality of the religious symbol on public land, as well as the transfer itself.
“I believe the president substantially improved the chances that the desires of a vast majority of San Diego voters – all those votes to preserve the integrity of the memorial – will finally be fulfilled,” said San Diego Mayor Jerry Sanders at a press held in the shadow of the cross Monday afternoon.
Last week James McElroy, the attorney for Philip Paulson, an atheist and Vietnam Veteran who originally challenged the legitimacy of the cross, filed suit against the city and United States, alleging that the transfer constitutes government aid to a religion and violates both the California and U.S. constitutions.
He’s asked U.S. District Judge Barry Moskowitz to void the transfer, return the property to the city and enforce another federal judge’s previous ruling that the cross be removed. A hearing is expected next month.
McElroy has won every legal round to date, arguing before federal and state judges that the location of the cross violates the separation of church and state provisions of the California Constitution. The city has appealed those cases.
The transfer brings new hope to the cause of cross supporters. With the cross on federal land, the California Constitution and state courts are no longer a part of the equation. Cross proponents believe they have a better chance of getting a federal judge to issue a ruling in their favor based solely on the more loosely interpreted U.S. Constitution.
When the cross was located on state land, federal judges first had to determine that it didn’t violate the California Constitution, which leaves little room for judicial interpretation, before they could consider it under the U.S. Constitution. The federal judge never got that far, ruling that the existence of the cross violated the state law establishing the separation of church and state.
Cross supporters’ optimism is bolstered by Supreme Court Justice Anthony Kennedy’s July decision to prevent a federal judge from imposing fines against the city if the cross is not removed. Although the Supreme Court has twice declined to hear the case, Kennedy indicated the court, now thought to be more conservative, might be willing to reconsider.
In the wake of a report released last week that said former and present city officials lacked respect for the rule of law, McElroy accused Sanders and others who supported the legislation of having the same problem. Sanders rejected the criticism.
“The rule of law says you’re entitled to as many appeals as the court will allow and that’s what we have done,” the mayor said. “Just because a judge decides that it’s not within what he considers the framework of the law – the Supreme Court will be the ultimate arbiter of that … I feel like we have bent over backwards to abide by the law.”
Thanking Bush and Reps. Duncan Hunter and Brian Bilbray, who co-authored the legislation, and California Sens. Barbara Boxer and Dianne Feinstein, Sanders said the president’s action “affirmed the importance of preserving this memorial in its entirety.” He said he would allow the federal government to take the lead in doing so.
A similar transfer was attempted last year, but rejected by the courts.
In July 2005, 76 percent of voters supported Proposition A, which would have given the cross, land and memorial to the federal government. A superior court judge later ruled that the measure violated the state Constitution because it gave preference to a religion.
City Councilman Jim Madaffer said with the cross in federal hands San Diegans could finally breathe a sigh of relief.
“It is now the federal government’s problem,” he said at the press conference. “There has never been a federal law that gave license for this memorial to be here and that’s what has changed.”
Sanders said the Defense Department, which will oversee the property, has one year to negotiate fair compensation with the cash-strapped city. If an agreement hasn’t been met, the secretary of defense can ask a judge to set a price.
“I’m confident that we can come to an equitable agreement regarding the fair market value of this site,” Sanders said, adding that while he had no idea how much that would be it wouldn’t reflect the memorial’s “true value.”
Asked whether he’d accept $1 for the property, a way of facilitating the transfer when a sale is required, Sanders refused to answer the question.
“I want to remind everybody in San Diego that this site is a memorial, not anything else,” Sanders said. “It’s not residential or commercial property and I think that we will be able to arrive at a fair and just solution for this so that we can continue it as a memorial.”
“What matters,” the mayor said, “is this preserves the memorial for the people of San Diego and the military veterans who have fallen.”
(Editor’s Note: The original version of this story erroneously reported that 173 acres of land surrounding the Mount Soledad Cross were transferred to the federal government.)