San Diego Union Tribune

July 20, 2006

House OKs plan to keep cross on Mount Soledad

Vote moves issue to federal arena


WASHINGTON – In a move that eventually could trigger a test of church-state separation provisions in the Constitution, the House agreed yesterday to transfer the land beneath San Diego's Mount Soledad cross to the federal government.

After a brief debate, House members voted 349-74 to seize the land and give it to the Defense Department in an effort to avoid a court-ordered removal of the 43-foot-tall cross.

“The memorial cross serves a legitimate secular purpose of commemorating our nation's war dead and veterans,” said Rep. Duncan Hunter, R-Alpine. “Therefore, the display of the Mount Soledad cross on federal property . . . is constitutional.”


Hunter was one of three San Diego-area GOP congressmen who co-wrote the legislation to preserve the cross, which was dedicated in 1954 as a Korean War veterans memorial.

Under federal law, which is more flexible on the issue than California law, religious displays have sometimes been allowed to stand on public property if they have historic or cultural significance.

Reaction to yesterday's vote was mixed among San Diego's elected officials and others.

San Diego Mayor Jerry Sanders, who lobbied the Bush administration to save the cross, characterized the House vote as “great news.”

But others, including Council President Scott Peters and City Attorney Mike Aguirre, said the House vote simply complicates a problem that will eventually be decided by the Supreme Court.

“I think it makes things worse, not better,” Peters said. “It doesn't change the legal landscape because the law doesn't care whether it's a city government or a federal government that owns a cross on public land. The legal issues are still the same.”

Peters added, “We'd be better off waiting to hear what the Supreme Court said about the city ownership before we tried this new gambit.”

Aguirre agreed, saying there is no basis for the federal government to seize city property.

“Although I have high regard for Congressman Duncan Hunter, this really is not helpful to us because what it basically says is that we're not going to allow the court process to work its way through,” Aguirre said.

Cross supporters said the vote heralded new momentum for them.

Charles LiMandri and Phil Thalheimer, two local leaders in the effort to preserve the cross, said they are optimistic the Senate will support the measure, although they acknowledged its fate is less certain there.

“I think prayers are answered sometimes and I think that's what's happening here,” said LiMandri, an attorney active in the legal battle.

Church-state separation advocates criticized the House action.

“This bill is a gratuitous attempt by Congress to improperly intervene in an ongoing lawsuit,” said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State. “Congress needs to butt out.”

The House vote – which sent the issue to the Senate – paved the way for what could be a new legal dynamic in the long-running battle over the cross that stands atop 800-foot-high Mount Soledad. Should the Senate approve the legislation and President Bush sign it, foes of the cross have vowed to challenge the action in court.

Lawyers on both sides of the issue predict that such a challenge would take the focus off the California Constitution, where it has been for 17 years, and place it squarely on the U.S. Constitution's provisions guaranteeing separation of church and state.

Attorney James McElroy, who represents Philip Paulson, the Vietnam War veteran and atheist who first filed a lawsuit over the cross in 1989, said the courts, not Congress, will ultimately decide the symbol's fate.

“I think it's an extremely unfortunate day, when we got what is going on in the Middle East, for the Congress to be wasting its time . . . on a local issue like this that is obviously unconstitutional,” McElroy said.

Hunter's bill, H.R. 5683, seeks to preserve the Mount Soledad Memorial by vesting title to the memorial in the federal government and having it administered by the secretary of defense.

Rep. Brian Bilbray, the Carlsbad Republican whose district includes Mount Soledad, told House colleagues of the time his father, a veteran of the Korean War, pointed out the monument when Bilbray was a boy.

“I remember as a child, my father driving past and saying, 'This is one of the few memorials in the country that recognize the heartbreak of what went on in Korea,' ” said Bilbray. “I am shocked at a time of war . . . that we're talking about destruction of a war memorial.”

William Kellogg, president of the Mount Soledad Memorial Association, which maintains the cross and the walls with plaques memorializing veterans atop the hill, said he has renewed hope that the cross will stay put.

“It's probably the most promising set of developments we've had in a long time on this issue as far as the possibility of keeping the cross where it is,” Kellogg said. “I think it has truly raised the possibility that that could occur.”

However, those seeking to remove the cross say it is a Christian religious symbol and should not sit on city land. They note that historical maps refer to the monument as the “Mount Soledad Easter Cross.”

“If this bill were nothing more than a veterans' issue, we would have a very simple decision before us today,” said Rep. Susan Davis, D-San Diego. “But, unfortunately, that is not the case. The courts have told us time and time again what this issue is about: It is about a demonstrated preference of one religion over all others. It is about a uniquely religious symbol on public land.”

This was Hunter's third attempt to protect the cross with federal action. Hunter leaned on his seniority in the House and friendships to move the legislation quickly through the lower chamber with only perfunctory votes – and no hearings – in House committees.

Hunter also earned the endorsement of the Bush White House, which released a statement in support of the legislation.

“The administration strongly supports passage of H.R. 5683,” the statement read. “The people of San Diego have clearly expressed their desire to keep the Mount Soledad Veterans Memorial in its present form. Judicial activism should not stand in the way of the people.”

Bilbray and Rep. Darrell Issa, R-Vista, joined Hunter in sponsoring the legislation. Reps. Bob Filner, D-San Diego, and Davis voted against it.

California's two Democratic senators – who have argued that public money should be used to help preserve missions that hold Catholic services because of the historic nature of those buildings – have indicated support for protecting the cross.

Sen. Barbara Boxer said she believes “the monument is a historical memorial to our veterans and should be allowed to stay.” Sen. Dianne Feinstein said that “because of the history and significance of this monument to so many veterans and San Diegans, it should be preserved.”

But cross foes vowed to continue the court challenges.

“The courts will invalidate the transfer,” said McElroy, the attorney representing Paulson. “This is going to inflame people's emotions, but it won't succeed.”

This month, the U.S. Supreme Court temporarily blocked a lower court order forcing the city to remove the cross by Aug. 1. That deadline, set by U.S. District Court Judge Gordon Thompson Jr. – who first ordered the cross removed in 1991 on the grounds it violated the state constitution's ban on government support of religion – would have imposed a $5,000-a-day fine had the city not removed the cross.

Union-Tribune reporters Craig Gustafson and Matthew T. Hall contributed to this report.

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