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Despite voter approval, judge rules San Diego cross transfer unconstitutional; appeal coming

SAN DIEGO (BP)–A Superior Court judge has ruled that the transfer of a landmark war memorial to the federal government would be unconstitutional — even after San Diego voters easily approved a proposition facilitating the transfer. Supporters of the monument, which incorporates a cross as its most prominent element, have vowed to continue the fight.

Judge Patricia Yim Cowett ruled that Proposition A, which passed with 76 percent of the vote in July, would be an unconstitutional aid to religion, repeating what city officials were first told by a federal judge in 1991, according to The San Diego Union-Tribune.

Cowett, in her ruling Oct. 7, barred the transfer and said Proposition A and the ordinance the city council passed to place it on the ballot are invalid and unenforceable because of the constitutional violation, The Union-Tribune said.

The 29-foot-tall cross atop Mt. Soledad came under fire from a San Diego atheist and his ACLU-funded lawyer more than a decade ago. In 1989, atheist Philip Paulson filed suit against the city of San Diego, claiming that the presence of the cross on city property violated the California constitution’s provision on separation of church and state. The cross was erected in 1954.

The proposition, which would have made the monument a national war memorial, needed a two-thirds majority to pass and was a significant victory for cross supporters. It took federal action to make the July 26 vote possible.

In December President Bush signed into law a bill that allows the federal government to assume ownership of the property should San Diego choose to donate it. But in March the city council voted not to transfer the property to the government, and supporters of the cross — both Christian and non-Christian — stepped in with a petition drive. They gathered 73,000 valid signatures, more than twice what was required, requesting that the city council place the matter before voters.

The transfer is seen as a way to preserve the memorial after a judge ruled in 1991 that the cross on public land violated the California constitution. Two attempts by the city to sell the land to the Mt. Soledad Memorial Association were overturned in court.

Chris Clark, pastor of East Clairemont Baptist Church and a member of the group San Diegans for the Mt. Soledad National War Memorial, told Baptist Press that Charles LiMandri, an attorney with the Thomas More Law Center who has been involved in the case, is in the process of appealing Cowett’s decision.

“What he’s filing right now is a motion to vacate, which is a motion asking the judge to set aside her ruling because it is causing injury to particular parties,” Clark said Oct. 12. “He’s filing it on behalf of the San Diegans for the Mt. Soledad National War Memorial.

“So in all likelihood, she will deny that motion to vacate, at which point LiMandri will be able to appeal that denial of the motion to vacate to the 4th District Court of Appeals,” Clark said. “That’s a relatively conservative court, so we stand a good chance there.”

At the same time, Clark said, attorney James McElroy, who represented Paulson in the original and subsequent cases, is set to file a motion with the judge who made the 1991 ruling, asking him to enforce the decision.

“He’s trying to push it forward and get the cross taken down,” Clark said, adding that the judge is a federal judge, so if he presents an opinion, the case will most likely be appealed to the 9th Circuit Court of Appeals.

“And then ultimately it’s very likely, if we can get the appeals, this very well could wind up looking at the Supreme Court,” Clark said.

With the addition of John Roberts to the court as chief justice and the possible addition of the evangelical Harriet Miers in place of Sandra Day O’Conner, cross supporters stand a better chance of winning, observers say.

“We haven’t quit yet. We haven’t laid down our arms,” Clark said. “We haven’t given up. We’re going to continue to battle because there are just some things that are worth digging in and standing your ground.”

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  • Erin Curry