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Saturday, Aug. 12, 2006 | A federal judge said Friday he won’t prevent President Bush from signing legislation immediately conveying ownership of the Soledad Cross from the city of San Diego to the federal government, but will hear arguments next month regarding the constitutionality of the transfer and possibly the cross itself.
U.S. District Court Judge Barry Moskowitz’s decision to hear arguments about the transfer, the details of which still remain fuzzy, opens a new chapter – and a new case – in the 17-year legal drama surrounding the 43-foot cross.
“This is a matter of public concern so it should get priority,” Moskowitz said.
Moskowitz decided against stopping Bush from signing the bill after hearing last minute arguments from James McElroy, the attorney for Philip Paulson, an atheist who originally sued to remove the cross from government land. The judge said he couldn’t rule on the constitutionality of the transfer because it has yet to occur.
McElroy and Paulson have won every related legal contest to date, arguing that the location of the cross violates the separation of church and state provisions of the California Constitution. Moreover, they have successfully argued the efforts of city officials and other politicians to prevent the cross from being removed amount to an unconstitutional government preference for a particular religion under the California law.
Yet with the Moskowitz’s ruling, Bush, who expressed his support for the legislation shortly after it was passed by the House, is free to sign the legislation at a White House ceremony scheduled for Monday. 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
By approving the transfer, the president will affect a legislative taking of the cross, the memorial at its base and the surrounding a half acre parcel, through eminent domain. At the same time Bush will deliver a new hope to cross proponents and add another level of complexity to an already convoluted legal mêlée.
Changing Legal Landscape
Proponents of keeping the cross atop Mount Soledad say that shifting the ownership of the cross into federal hands will radically alter the surrounding legal debate.
They contend that the state constitution, which strictly limits religious expression on government land, will no longer apply once the cross becomes federal property. Moreover, all legal challenges will have to be considered by federal courts under the U.S. Constitution, which provides more leeway for such displays, rather than in state court.
“We think that under federal law our chances of prevailing are much higher,” said Charles LiMandri, chief council for San Diegans for the Mount Soledad National War Memorial, a group that seeks to preserve the cross. “This is an independent act of Congress and McElroy is not going to get the state Constitution to apply.”
Any additional challenges to the cross will have to name the United States as a party, bringing the considerable resources of the federal treasury and the U.S. Attorney General’s Office into the fray.
LiMandri, who is also the West Coast regional director for the Thomas More Law Center, a Christian law group, said the transfer could render moot two prior court decisions that found the cross to be unconstitutional under state law and are currently on appeal by the city.
Although Proposition A – which would have given the cross, land and memorial to the federal government – passed with 76 percent of the vote in a special election in July 2005, Superior Court Judge Patricia Yim Cowett ruled in October that the measure was and unconstitutional aid to religion and invalid because its purpose was to save the cross.
In May, U.S. District Court Judge Gordon Thompson Jr., who nearly 15 years earlier ordered the city to remove the cross from public land, added a new sense of urgency to the cross polemic. He issued an ultimatum, giving the city 90 days to relocate the cross or face a $5,000 daily fine.
Both cases are currently being appealed by the city. The Thompson decision is set to be heard by the federal Ninth Circuit Court of Appeals in October, while the Cowett case has yet to be scheduled by the state Fourth Circuit Court of Appeals.
In agreeing to evaluate the transfer next month – once the cross belongs to the federal government – Moskowitz could become the first judge to focus solely on whether or not the cross violates the U.S. Constitution. (Although Thompson is a federal judge, he was prevented from considering the legality of the cross under the U.S. Constitution without first finding that it was within state law.)
The judge said he’s not sure yet whether he’ll weigh in on the legality of the cross or just the pending transfer by Bush and Congress.
As legal and political efforts to save the cross simultaneously move through the courts and Washington D.C., there are numerous unanswered questions surrounding the transfer and its impact on the appeals.
While the Defense Department will take possession of the property as soon as Bush lifts his pen from the page, no one yet knows how much money the federal government will pay the city for the land. According to the legislation, the parties have a year to come to an agreement at which point the Secretary of defense can seek a court judgment.
David Carlin, the deputy city attorney who is handling the case for the city, said the last known value for the property, which is dedicated as open space, was $106,000, the highest bid received by the city in an attempt to sell the property – which was also ruled unconstitutional. Carlin said the process of appraising the site is already underway.
The Mount Soledad Memorial Association, the group that built and maintains the memorial, also has concerns about how it will be allowed to operate once the Defense Department takes possession.
At Friday’s hearing Charles Berwanger, the attorney for the memorial association, expressed concern that members won’t be able to hold ceremonies or add new plaques to the memorial without first slogging through red tape in Washington, D.C.
Finally, Judge Moskowitz voiced concern yesterday over what will happen to the property if the transfer proceeds but is later ruled unconstitutional.
A representative for the U.S. Attorney General’s Office, who weighed in via speaker phone from Washington, D.C., told Moskowitz she wasn’t positive that the transfer could be reversed, but said she thought it was likely.
Back in the Courtroom
Arguing on behalf of his client Friday, McElroy claimed 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 Thompson’s ultimatum.
“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.”
McElroy said he never expected Moskowitz to prevent Bush from signing the legislation, but instead wanted to begin the process of challenging the constitutionality of the transfer.
McElroy said he’s certain that the transferring the cross from one government entity to another won’t solve its underlying legal flaws. In his filing with the court, McElroy called the transfer “venue shopping.”
“It’s just like saying pinto beans and baked beans are different,” McElroy said after the hearing. “They’re still beans. The difference is negligible.”
McElroy accused the federal officials of using eminent domain in bad faith and with no other purpose but to preserve the cross.
“These people are sworn to uphold the constitution,” McElroy said. “The president has no respect for the law. To do this now with two appeals pending shows disrespect for the court system. There’s no reason they couldn’t have waited for the appellate courts to decide this.”
The seemingly never-ending battle over the fate of the cross has taken on new urgency and gained national attention in the wake of theCowett and Thompson rulings.
With the future of the cross in jeopardy after Thompson’s ultimatum, Mayor Jerry Sanders and Hunter appealed to Bush to intervene, urging the president to use his power of eminent domain to take the property for the federal government.
In late May the City Council voted to approve Sanders’ suggestion that the city appeal both judges’ rulings and, in the meantime, seek a postponement of the ultimatum.
With a host of politicians actively supporting the cross, national Christian organizations and veterans groups entered the fray, offering spiritual and financial support.
Some of the groups said they were interested in preserving the war memorial while others made no bones about promoting the Mount Soledad Cross as the next flashpoint in the war over the role of religion in American culture.
In late June proponents of the cross were given new hope when Hunter, Bilbray and Issa introduced the transfer legislation in the House, but received a set back days later when a federal court of appeals denied the city’s request to freeze Thompson’s stopwatch.
In what was though to be a last ditch effort, the city made a last appeal to the U.S. Supreme Court, which had already refused to hear the case on two separate occasions. With no word from White House and the Aug. 2 deadline looming, city officials quietly began making plans for the removal of the cross.
On July 3 the matter came to a dramatic head when Supreme Court Justice Anthony Kennedy, tasked with reviewing the city’s request for a stay, announced that he was putting Thompson’s ultimatum on hold until further notice. Four days later Kennedy issued a ruling indicating that at least four justices, the minimum needed, would be willing to hear the case if the city lost its appeal of Thompson’s ruling in the lower courts.
With unexpected progress on the legal front, cross proponents had all the more reason to celebrate when, the day after the House approved the transfer, the White House released a support statement indicating the president’s support. The Senate unanimously passed the legislation on Aug. 1 forwarding the bill to Bush for his signature.
(Editor’s Note: The original version of this story erroneously reported that 170 acres of land surrounding the Mount Soledad Cross were transferred to the federal government.)