UPDATE 8 p.m. President Bush signed into law on Monday the federal “taking” bill discussed below. The White House issued no statement on the signing.
Five weeks after Supreme Court Justice Anthony M. Kennedy temporarily blocked the removal of a Christian cross from city property in San Diego, this much-litigated dispute has taken a new turn. It has become a federal constitutional controversy for the first time in the 17-year history of challenges to the 43-foot monument atop Mt. Soledad. The dispute, which has reached the Supreme Court three times, appears headed back again.
The dispute under the First Amendment’s establishment of religion clause has just begun in U.S. District Court in San Diego (Trunk, et al., v. San Diego, et al., docket 06-1597), in an attempt by two military veterans who are atheists to stop the federal government from taking “immediate possession” of the cross and surrounding property as the “Mt. Soledad Veterans Memorial.” Congress completed passage of that taking-with-compensation measure on Aug. 1, and President Bush was scheduled to sign it into law on Monday.
The Trunk case, which also involves veteran Philip K. Paulson (who has been battling the cross in court since 1989, largely successfully), was filed eight days after the bill was passed. Last Friday, U.S. District Judge Barry Ted Moskowitz refused to block the transfer to the federal government, but scheduled a hearing on the challenge for next month. (The transcript of the Friday proceeding, with the judge giving his reasons on the record, is not available, but San Diego news outlets have reported that the judge had said the cross would remain temporarily on Mt. Soledad because of earlier litigation continuing in the Ninth Circuit Court, so there was no need for immediate action.)
In asking the judge to forbid the transfer, the two veterans contended that “the city is trying to save the cross by transferring the cross and the land under it to another public entity, which makes little or no sense. A cross that is unconstitutional on public property is unconstitutional whether on municipal or federal property.” The takeover by the federal government would clearly violate the Establishment Clause, both in the act of transfer and in the presence of the cross on federal land, the veterans contend.
Congress has made two moves to preserve the cross and the setting. Last year, it passed what is now Public Law 108-447, designating the site as the Mt. Soledad Veterans Memorial, and provided for the government to accept a donation of the site by the city. The existence of that law was one of the factors that led Justice Kennedy to delay a judge’s order to remove the cross from city property, while legal proceedings unfold.
But, with the continuing court dispute, and the city under court order not to donate the site, the supporters of the cross persuaded Congress this summer to take the further step of seizing the land for federal public use, with the amount of compensation to be worked out in negotiations over the next year (H.R. 5683). The bill would take immediate effect with presidential approval.
The President’s approval is a foregone conclusion. In July, the White House issued a statement saying “the Administration strongly supports passage of H.R. 5683,” and complained about “activist” courts. It said: “Judicial activism should not stand in the way of the people…The people of San Diego have clearly expressed their desire to keep the Mt. Soledad Veterans Memorial in its present form….The Administration supports the important goal of preserving the integrity of war memorials.” (The text of the statement can be found here.)
The Supreme Court twice denied review — in 1994 and 2003 — of lower court rulings finding the presence of the cross on city property violated the California state constitution.
(Thanks to Howard Bashman of How Appealing blog for an alert to news stories on the new developments in the case.)
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