An attorney asked a federal judge today to prevent President Bush from signing legislation that would transfer ownership of the cross, the veteran’s memorial at its base and half acre of surrounding land from the city to the federal government.

The application for a temporary restraining order comes at the ninth hour, with Bush scheduled to sign the legislation at 1 p.m. on Monday.

For more on the legislation, co-authored by Reps. Duncan Hunter, R-El Cajon, Brian Bilbray, R-Carlsbad, and Darryl Issa, R-Vista,click here.

Jim McElroy filed his latest request on behalf of Philip Paulson, the original plaintiff in the prior suits, and Steve Trunk, who is new to the battle. Both Paulson and Trunk are atheists and veterans of the Vietnam War. McElroy filed the original suit 17 years ago on behalf of Paulson challenging the constitutionality of the cross atop Mount Soledad.

Judge Barry Moskowitz is scheduled to hear McElroy’s request Friday morning.

Charles Berwanger, the attorney for the Mount Soledad War Memorial Association, the group that maintains the hilltop memorial and wants to preserve the cross, said he doubts that Moskowitz will grant the request.

“McElroy has to show that the transfer will cause irreparable harm,” said Berwanger, noting that if a court rules that the presence of the cross on federal land is unconstitutional, the transfer can easily be undone.

In his filing, McElroy argues that Trunk and Paulson will have their First Amendment rights violated by public office holders if “the federal government, by federalizing the war memorial, effectively treats these two non-Christian Vietnam War veterans as second class citizens and violates their rights under the Establishment Clause by showing the government’s preference for Christianity.”

(The Establishment Clause is part of the First Amendment which creates a separation between church and state.)

Berwanger said that Moskowitz could grant or dismiss McElroy’s request for a temporary restraining order, or exercise a “pocket veto” by not issuing a ruling until after President Bush signs the legislation.

In his request, McElroy argues that “government acts to preserve the Mt Soledad Cross on public property have already been found by the courts to violate…the California constitution and the First Amendment of the United States Constitution.”

For more than you ever wanted to know about the legal history of the Soledad Cross, click here.

According to the filing, McElroy didn’t give notice of his request to the city, federal government or media because, “it is reasonably likely the transfer would occur causing irreparable injury before the parties could be heard.”

(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.)

DANIEL STRUMPF

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