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Mojave cross could inform Mt. Soledad case

Attorneys involved in the ongoing Mt. Soledad cross controversy are divided over whether they think the outcome of a U.S. Supreme Court case on the constitutionality of a memorial cross in California’s Mojave National Preserve will have any bearing on their case.

In the Mojave case, Salazar v. Buono, a stand-alone cross located since 1934 in a remote part of the preserve memorializing fallen soldiers has been transferred to a private group, the Veterans of Foreign Wars. The Supreme Court, which heard arguments last week, is being asked to rule on whether an official display of a Christian symbol violates the First Amendment’s ban on an establishment of religion.

Still in the courts

In a similar situation, a 20-plus-year court battle over the constitutionality of a Latin cross atop La Jolla’s Mount Soledad continues. That case is now before a three-judge panel in the Ninth Circuit Court of Appeals awaiting oral arguments sometime in the next few months. Meanwhile, the Mount Soledad memorial property surrounding the cross remains in the hands of the U.S. Navy, which acquired the site from the city of San Diego by eminent domain on Aug. 14, 2006.

Jim McElroy, representing the late Philip K. Paulson and now Steve Trunk in the challenge to the presence of the cross on Mount Soledad, said last week he is unsure what, if any, impact Mojave will have on his case.

“It may have no effect on our case whatsoever,” he said. “But it could have.”

About the transfer

McElroy added it all depends on how the Supreme Court rules on whether the private transfer of the cross as a remedy to a Christian cross on public land was a constitutional violation or not.

“In Mojave, they sold this postage-stamp parcel to a veterans group in exchange for a piece of veterans’ land seven miles away,” he said. “So now you have private land sitting in the middle of thousands of acres of federal land. I think it was a convoluted transfer to try and save the cross, thus it was an unconstitutional act.

“That’s really the issue before the Supreme Court: Was this a neutral act of government to remedy a legal problem, or were they motivated by (preserving) a pro-religious symbol?”

‘Not the same’

Attorney Charles Berwanger representing the Mount Soledad Memorial Association, the La Jolla veterans group that built the Mount Soledad War Memorial in 1954 and has maintained it ever since, said there are dissimilarities between the two court cases.

“In Mount Soledad, the judge concluded the cross could be left on federal land, that that was consistent with the First Amendment,” he said. “The Mojave case involves a stand-alone cross that is on private land, and the plaintiff contends that the transfer of the cross to private hands is a subterfuge meant to preserve the cross.”

Berwanger added the U.S. Supreme Court has the discretion to focus on any aspect of the Mojave case, including procedural issues, like whether the plaintiff who is challenging the cross’s presence — as an Oregon not a California resident — has “standing,” meaning the legal right to challenge.

‘Symbol of sacrifice’

Berwanger added crosses are a universal symbol of self-sacrifice.

“There are a number of crosses in Arlington National Cemetery memorializing the lives of soldiers who gave their lives for their country,” he said. “How is that different than the crosses being challenged in the Mojave case and in our case?”

Attorney Charles LiMandri, a San Diego native who is affiliated with The Thomas More Law Center, a conservative Christian, not-for-profit law center defending the religious freedom of Christians, said he believes the outcome of the Mojave case could be a legal watershed.

“Religious symbols have been on public property since the founding of our nation,” he said. “What we’ve got (Soledad) is a multifaceted, fully integrated, world-class war memorial. If they could win on the establishment clause in Mojave, we’ve got a hands-down (victory) on the Mount Soledad cross.”