A Superior Court judge issued a temporary restraining order yesterday barring the city from transferring the Mount Soledad cross to the federal government under the deal voters overwhelmingly approved in San Diego’s July special election.
Judge Patricia Yim Cowett’s tentative, 34-page ruling in the case questioned the constitutionality of Proposition A. The measure called for the city to hand over the cross to the federal government as part of a national veterans memorial.
She told the lawyers to return to court Oct. 3 to present their arguments regarding her opinion, which was filled with citations of case law and explanations of the cross’ history.
Cowett ruled that the “transfer is again an unconstitutional preference of the Christian religion to the exclusion of other religions and non-religious beliefs,” in violation of the state constitution.
In addition, she stated that the city’s attempt to hand over the land to the federal government without compensation “for the purpose of saving the cross is also an unconstitutional aid to the Christian religion.”
Cowett wrote that the memorial has predominantly “a religious purpose,” and noted that secular events and adornments at the site were added only after legal challenges were threatened or initiated. This, she wrote, could at worst suggest “a sham secular purpose.”
“To maintain the memorial, as it is presently, would demonstrate the government’s lack of neutrality as to religion,” she ruled, while emphasizing that her decision “does not attempt to, nor does it actually, demonstrate hostility to religion.”
It’s the latest twist in the long legal saga involving the 29-foot cross, which sits on city-owned land atop a rise in La Jolla that can be seen for miles.
The attorney for Philip Paulson, the atheist who has fought a long legal battle to have the cross removed, said the judge ruled in his client’s favor on the three key issues: two potential breaches of the state constitution and one of the federal constitution.
“I certainly expected this result,” James McElroy said. “The law demanded this result.”
City Attorney Michael Aguirre and several City Council members had warned before the July vote that Proposition A would not stand up to a legal challenge related to the separation of church and state.
“Majority vote does not always rule out,” Aguirre said. “There are certain fundamental precepts that can’t be voted away.”
But Charles LiMandri, an attorney for the Thomas More Law Center, which pursues Christian issues in the courts, disagreed with a number of Cowett’s findings. He also questioned her right to participate in the case, given the involvement of the federal government.
“She really should not be ruling on this at all,” he said. “The federal court has jurisdiction first.”
Myke Shelby, a former mayoral candidate who submitted the petition to force the vote on Proposition A, reacted with shock yesterday. He said he is likely to ask an attorney to explore his options about participating in the Oct. 3 hearing.
“We tried to do everything according to the rules, but they keep on changing the rules,” he said. “This is like moving the goal post.”
The short-handed council – now at six members because of the departures of Mayor Dick Murphy, who resigned, and two councilmen, who were convicted on federal corruption charges – needs five votes to pass any decisions.
McElroy doubts that enough votes supporting an appeal of the judge’s ruling can be gathered.
“The city is the only party that can appeal,” McElroy said. “I don’t think the city is going to want to appeal. It’s going to cost them a ton of money for their time and effort.”
LiMandri, however, expects an appeal. He noted that if the Supreme Court nomination of Judge John Roberts is confirmed, it could create a narrow majority willing to protect the placement of religious symbols on public property.
“It’s not going to end here,” he said. “This is the type of case that’s going to need to go to the appellate level and may go all the way to the Supreme Court.”
The Supreme Court issued contrasting rulings in June involving religious symbols on public land.
In one case, covering displays of the Ten Commandments in two Kentucky courthouses, the court rejected arguments from counties wishing to maintain them.
Justice David Souter wrote in the majority opinion that such displays, if they include secular elements, have “to be genuine, not a sham, and not merely secondary to a religious objective.” Cowett’s ruling appeared to echo that opinion.
In the other case, regarding a monument featuring the Ten Commandments on Texas parkland, the court ruled that the display was not unlawful. Chief Justice William Rehnquist’s majority opinion stated that the display had a “dual significance, partaking of both religion and government.”
The current Mount Soledad cross was erected in 1954 to honor Korean War veterans on a site marked by a cross off and on since 1913. The Mount Soledad Memorial Association manages the monument. Granite walls bearing memorial plaques honoring all veterans were placed there in 2000.
The July ballot was the third time since 1992 that San Diego voters have been asked to determine the status of the cross.
Proposition A was passed by nearly 76 percent of San Diego voters, easily surpassing the two-thirds threshold that Cowett ruled was required five days before the July 26 election.
Prior to the vote on Proposition A, supporters collected nearly 100,000 signatures to keep the cross on Mount Soledad.
High-profile San Diegans backed the drive, including Murphy and another former mayor, radio host Roger Hedgecock. Nearly 73,000 of the signatures ultimately were deemed valid, twice the necessary number.
The measure called for the city to donate the cross, the memorial walls and the land around the display to the U.S. Interior Department as a national veterans memorial.
Court decisions involving the cross stretch back more than a decade.
In 1991, U.S. District Judge Gordon Thompson Jr. ruled that having the cross on city land violated the state constitution. An injunction barring the cross from the parkland was put on hold while the sides tried to find a solution.
Federal courts struck down two sales of the cross to the memorial association. A third sale was rejected by San Diego voters in November.
Weeks later, two members of San Diego’s congressional delegation, Rep. Randy “Duke” Cunningham, R-Rancho Santa Fe, and Rep. Duncan Hunter, R-El Cajon, inserted language into an omnibus spending bill declaring the cross site a national war memorial.
President Bush signed the bill into law in December, but the city had to agree to transfer the land to the federal government.
The City Council quashed the deal in March, opting to allow the cross to be moved to another site, but the cross supporters’ successful petition campaign forced members to reverse their decision. They voted in May to let voters decide the issue in the special election.
Paulson first challenged the presence of the cross on public land in 1989.