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
“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
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
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
“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
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
“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
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.