By Dana Wilkie
COPLEY NEWS SERVICE
WASHINGTON – With a speed and decisiveness that surprised some, the Senate on Tuesday approved a plan to transfer the land beneath the Mount Soledad war memorial to federal control in an effort to avoid a court-ordered removal of the cross that stands there.
The Senate's unanimous vote sent the cross-transfer plan to President Bush for his expected signature. It creates what some consider an entirely new dynamic in the 17-year effort to save the cross, but which others say is a hopeless attempt to preserve a symbol on city land that courts have said unconstitutionally favors one religion over others.
“Obviously we're delighted,” said Charles LiMandri, an attorney advising a group of Soledad cross supporters. “I think even the more liberal side of the Democratic party has to recognize that there is widespread, grassroots support for preserving veterans memorials in general, and the Soledad cross in particular.”
James McElroy, the attorney representing atheist Philip Paulson – who first sued to remove the cross on the grounds it amounts to an unconstitutional preference of the Christian religion over others – said the bill is “still unconstitutional.”
“I guess the Senate has a short memory,” he said. “You've got a local issue here. What business does the federal government have getting involved?”
The legislation would preserve the 29-foot-tall cross on Mount Soledad by vesting title to the memorial in the federal government and having the Secretary of Defense administer it. The Department of Defense would manage the monument. The Mount Soledad Memorial Association, a private group that built the current cross in 1954 to honor Korean War veterans, would continue to maintain the site.
“Today's vote represents a significant step forward,” said El Cajon Rep. Duncan Hunter, the Republican who joined his two GOP colleagues from San Diego to write the cross-transfer legislation, which passed the House late last month. “The action taken by both the House and Senate reaffirm the overwhelming desire of the San Diego community to keep the memorial exactly where it has proudly stood for over 50 years.”
San Diego Mayor Jerry Sanders, who has fought to keep the cross atop 800-foot-high Mount Soledad, said through spokesman Fred Sainz that he was grateful for “the resonance” with which the Senate spoke on the issue.
“I think that the Senate was able to put political correctness aside for a moment and understand this truly is a war memorial,” Sainz said. “The fact there that a cross is part of it is an issue that senators of all religious faiths were able to come to terms with and accept.”
In July the U.S. Supreme Court temporarily blocked a lower court order forcing the city to remove the cross by yesterday (Aug.1) on grounds it violated the state constitution's ban on government support of religion.
The deadline was set by U.S. District Court Judge Gordon Thompson Jr., who first ordered the cross removed in 1991. It would have imposed a $5,000-a-day fine for failing to comply.
Senate approval came less than two weeks after the House voted 349-74 on July 19 to seize the land and give it to the Defense Department. After some brief wrangling among senators over who would carry the Hunter legislation through the upper chamber, the bill was placed on a so-called “consent calendar,” which indicated it had little opposition. “It's a hot potato, and I suspect the Senate would just as soon pass it and get it to the president and let the courts deal with it,” said Charlie Berwanger, attorney for the Mount Soledad Memorial Association, which has fought to keep the cross where it is.
McElroy said he didn't expect California Sens. Dianne Feinstein and Barbara Boxer, both Democrats, to embrace the measure as they did.
“I didn't expect them to go with this fad,” McElroy said. “But this has become good fodder for politicians in an election year.”
Feinstein and Boxer tend to be staunch church-state separation advocates. But both also support a plan to spend federal money to preserve California missions that hold church services because, the senators argue, the missions have historical significance.
“The Mount Soledad cross has been a great source of hope and inspiration for decades, and it has important historical significance to veterans and San Diegans alike,” Feinstein said.
Boxer said, “I believe this monument to be a memorial to our veterans, and therefore should be allowed to stay. The Hunter bill was drafted in a way that is consistent with the latest court action.”
Republican Gov. Arnold Schwarzenegger also supported the Senate action, saying that “allowing this landmark to be destroyed would send the wrong message to our nation's veterans.” Should the Mount Soledad cross end up in federal hands, its future likely will rest on interpretations of the federal Constitution, not California's. Cross supporters say the courts have been more willing to allow religious symbols on public land on federal constitutional grounds, particularly if the symbol has historic or cultural significance.
Last year, a pair of 5-4 rulings by the U.S. Supreme Court in separate cases involving the Ten Commandments established fuzzy guidelines: The court found that a display inside a Kentucky courthouse was unconstitutional, but that a 6-foot granite monument outside the Texas Capitol was all right.
“The time may be ripe for the court to revisit the issue,” said LiMandri. “They'll take this case because the law needs clarity.”
Cross foes note that the courts have ordered the removal of other crosses based on federal constitutional grounds. Five years ago, the American Civil Liberties Union successfully sued to remove a 5-foot-tall cross of metal tubing in the Mojave National Preserve, although the removal is on appeal.
“I don't think the Supreme Court is going to rewrite the Constitution or the last 50 years of precedent,” McElroy said. “This is not like the Ten Commandments cases. The Latin cross is a powerful symbol of religion.”
For now, congressional action does not interfere with various lawsuits being pursued in state and federal courts.
In state court, cross supporters are appealing a decision by a Superior Court judge that invalidated Proposition A, a measure approved last fall by 76 percent of San Diego voters that would have donated the cross to the federal government, but which the judge said violated the state Constitution.
In federal court, the city is appealing Thompson's order to remove the cross or be fined. That case is to be heard in October.