On July 21, 2015, the San Diego Union Tribune (
visit link) reported the following story:
"Cross land transferred, cross case not over
Plaintiffs to review details of land transfer to make sure it’s constitutional
By Kristina Davis | 5:39 p.m. July 21, 2015
Could it really be over?
Last week the federal government officially transferred the land underneath the iconic Mount Soledad cross into private hands, a significant move that might effectively conclude the decades-long court struggle over the display of the religious symbol.
But scrutiny of the deal is just now beginning, and it could be weeks or months before two separate courts and a multitude of parties involved in the lawsuit decide whether to close the file for good.
“The devil is in the details,” said Jim McElroy, one of the lawyers who has fought against display of the 29-foot cross Latin cross on public land.
ADVERTISING
The land transfer to the Mt. Soledad Memorial Association, the nonprofit that maintains the veterans memorial below the cross, was signed into law in December as a small part of a massive defense-spending bill. The deal was coordinated with help from several politicians, including Democratic Sen. Dianne Feinstein and Rep. Duncan D. Hunter, R-Alpine.
Over the years of the fight, numerous federal judges, both at the district level in San Diego and at the next level, the 9th U.S. Circuit Court of Appeals, have ruled the cross to be an unconstitutional government endorsement of religion and ordered it to come down.
The latest order was being appealed by the government and the memorial association when the land transfer was suggested last year, and the appeal was put on hold.
Cross proponents are optimistic this deal, now executed, makes the whole case moot.
Opponents say it’s too early to tell.
McElroy, who represents atheist and Vietnam veteran Steve Trunk in the lawsuit, said he and other parties will now have to review the final terms of the land deal to make sure it passes constitutional muster.
The transfer requires the land to continue to be maintained as a war memorial, that the transfer price be fair market value, and allows for the half-acre parcel to be reverted back to the government if used for something else.
The price ultimately put on the transfer came to nearly $1.4 million – the same amount at which the memorial was valued when Congress took the land from the city of San Diego through eminent domain in 2006.
“We’re glad the government is at least taking a step toward getting out of the business of religion,” said David Loy, legal director for the local American Civil Liberties Union chapter, which is representing the Jewish War Veterans of the United States of America. “We need to see the document itself and understand its precise terms, then see what impact it has on the case.”
Since the legal question has now apparently changed, the 9th Circuit may agree that the appeal is moot and return the case to U.S. District Judge Larry Burns, who issued the most recent tear-down order.
The parties would then need to get together to talk, whether informally or at Burns’ request.
Bruce Bailey, president of the memorial association, said his organization will ask to have the case be dismissed, arguing the required separation between church and state has been fulfilled. If opponents wish to challenge the sale, lawyers said, they would likely have to do so by filing an amended complaint, or filing a completely new case.
“If someone wishes to disagree with this transfer, I think they’re going to have a very difficult time proving their case,” Bailey said. “Every box got checked.”
Bailey said he is hoping the legal case will wrap up and that the association can move toward making the war memorial, which features more than 3,700 plaques honoring veterans from various wars, a national landmark.
He said scraping together the $1.4 million was “difficult” – partly because it had to be acquired sooner than they’d anticipated – but that fundraising will continue to offset the cost.
Rita O’Neil, a nurse during World War II, was buoyed by news of the land transfer and the potential end to the debate.
She has her own plaque on the war memorial, as does her late husband and her brother-in-law.
“It’s just a wonderful place. Our relatives go up there. … I hope we keep it that way.'”