Law could let landmark stay through private ownership of property
A law allowing the transfer of the plot of land beneath the Mount Soledad cross from government to private ownership sailed through Congress on Friday and was headed to President Barack Obama to sign.
But hope that the bill might put an end to the 25-year litigation surrounding the religious La Jolla symbol on public land is fraught with many yet unanswered questions, including details of the land deal and whether it would pass muster in the courts, especially considering previous efforts have failed.
The measure was tucked into the National Defense Authorization Bill, a massive $585 billion military spending bill passed by the House last week and by the Senate on Friday. Rep. Duncan Hunter, R-Alpine, introduced the measure.
It allows the 29-foot cross, which sits on a 14-foot veterans memorial displaying some 3,600 plaques, and the surrounding land to be acquired by the Mount Soledad Memorial Association. The private group built the cross in 1954 and has maintained the memorial since.
In 2011, the 9th U.S. Circuit Court of Appeals, following a pattern of previous court rulings, deemed the cross an unconstitutional government endorsement of religion. Cross supporters hope the transfer would take the bite out of that ruling, which has been expected to be appealed to the U.S. Supreme Court.
“This is a significant development in the decades-long fight against efforts to dismantle the memorial,” Hunter said in a statement Friday. “The assumption remains that legal challenges will continue, but at least now this one veterans memorial, which is an important piece of the San Diego community, can no longer be perceived as a government endorsement of religion.”
Bruce Bailey, president and CEO of the memorial association, praised the efforts of Hunter and other congress members from California, including Democratic Sen. Dianne Feinstein, who helped advocate for the bill.
“It was — and it’s nice to say this — a bipartisan effort to make this happen,” Bailey said.
Obama has 10 days to sign the bill into law, which would then go into effect Jan. 1.
After that, the memorial association expects to begin talks with the U.S. Secretary of Defense on how to make the land transfer happen. The land will need to be appraised, and a price would have to be agreed upon for the memorial association. The law requires the land to be used as a veterans memorial in perpetuity.
Previous land transfers have run aground. In 1992, San Diego voters approved selling the cross and surrounding park to the memorial association, but a San Diego federal judge later voided the 1994 sale, saying it wasn’t open to competitive bidding.
In 1998, the memorial association bought the land, this time as the highest bidder, but the 9th Circuit ruled that the sale was unconstitutional because the city had given an edge to the veterans group.
What would make this transfer any different?
The veterans association says it the saving grace will be that the land would be bought for its appraised value.
Jim McElroy, a lawyer representing atheist and Vietnam veteran Steve Trunk, who is suing the government, said not enough is known about the details to say whether the transfer will satisfy all parties, including the courts.
“Our concern is how much land is being transferred? Is it a postage stamp under the cross? … How much is being paid? Is it $10?,” McElroy asked.
But, bottom line, he sees the congressional support for a land transfer as a win.
“Our point from the very beginning is it’s just not constitutional to have a 43-foot, 20-ton cross on government property,” he said. “We stuck to our guns and we proved our point, and now if we can get something worked out that makes sense, let’s do it.”
Both he and the veterans association’s representatives said they wouldn’t be surprised if the courts call for a meeting to discuss the case to see if it can be resolved with the land transfer in mind.
In 2006, Congress took the land away from the city of San Diego and put it in the possession of the federal government, in a move engineered largely by Hunter’s father, who then held his congressional seat. The city ended up reimbursing the memorial association about $1.3 million for its failed purchase of the land.
That price tag could help determine the value of the land this time around.