Bush Signs Bill to Save San Diego Cross

Times Staff Writer

President Bush on Monday signed a bill designed to save the cross atop Mt. Soledad here from being removed, but both sides in the 17-year court battle predicted more politicking and litigating before the fate of the cross is finally decided.

Bush signed a bill sponsored by Rep. Duncan Hunter (R-El Cajon) that designates the 43-foot cross and the city land beneath it as a federal war memorial under control of the Department of Defense.

A federal judge in May declared the cross a violation of the constitutional separation of church and state and ordered it removed by Aug. 2. That order was stayed last month by the U.S. Supreme Court until other legal issues can be resolved.

Cross proponents believe that shifting ownership of the land to the federal government will invalidate the judge’s ruling and make it more difficult for opponents to prevail because the U.S. Constitution is more flexible about religious icons on federal property than the state Constitution is about city land.


“We’ve gone from a sure victory for the opponents to what is now a long shot for them,” said Hunter soon after the closed Oval Office ceremony in which Bush signed the bill.

“The U.S. Constitution stands between the opponents and victory,” said Hunter, chairman of the House Armed Services Committee. “This is a great day for veterans.”

But San Diego attorney James McElroy, who has represented an atheist Vietnam veteran in the long fight to have the cross removed, said the shift in ownership will not matter. McElroy said several decisions in other cases involving crosses on federal land support his position.

“The cross on Mt. Soledad shows a preference for Christian veterans over non-Christian veterans who have fought and died for their country, and that’s wrong,” McElroy said.

Anticipating that Bush would sign the bill, McElroy filed a request with federal court in San Diego last week to declare that switching ownership does not change a previous ruling that the presence of the cross on public land is unconstitutional under the state Constitution.

The order to remove the cross was made in May by U.S. District Judge Gordon Thompson, but adding a new defendant -- the federal government -- means the case will have to be assigned to a different judge, McElroy said. U.S. District Judge Barry Ted Moskowitz said he will hold a hearing next month and issue a ruling within weeks.

The cross, erected in 1954 as a memorial to military personnel killed in Korea and the two world wars, has long enjoyed enormous popular support in this military community. Voters have twice endorsed measures to keep the cross, visible from Interstate 5, atop what is one of the most prominent hilltops in San Diego.

Rep. Brian Bilbray (R-Carlsbad) said he fears that forcing the removal of the cross could lead to court-ordered removals of crosses at other locations, including veterans cemeteries. “What’s next?” Bilbray said. “Remove the crosses at Arlington or Normandy?”

McElroy said the “Arlington argument” misses the point that courts have made: The size and location of a cross are significant in deciding whether it violates the constitutional separation of church and state. At Arlington, he noted, some graves are marked by stars of David.

“At Mt. Soledad, the cross is all that people see from a distance,” he said, noting that the war memorial plaques at the base of the cross can’t be seen from Interstate 5.

Although weary of the court fight -- and the legal bills that have run into the hundreds of thousands of dollars -- city officials have retained their support for legislators and private groups trying to find a way to keep the cross from being removed.

Mayor Jerry Sanders, at a news conference at the foot of the cross Monday afternoon, restated his view that the cross has become integral to the social fabric of San Diego. Sanders said he was glad the federal government would “take the lead in preserving the integrity of the memorial.”

Under the bill, the federal government will negotiate a price for the land beneath the cross. If an agreement cannot be reached, the government will use its power of condemnation. Responsibility for the maintenance of the cross will stay with the Mt. Soledad Memorial Assn., a private group.

The cross fight has made for some odd political pairings. Two Democratic representatives, Bob Filner of Chula Vista and Susan Davis of San Diego, voted against Hunter’s bill; but California’s two U.S. senators, Dianne Feinstein and Barbara Boxer -- also Democrats -- supported it.

Gov. Arnold Schwarzenegger said Bush’s action is “a great signal to our veterans that we will not forget the sacrifices that they made during the time of conflict.”

City officials have tried various strategies to keep the cross atop Mt. Soledad. A measure to have the land sold to a private group was struck down when the courts decided the sale was rigged to exclude groups that might want to remove the cross. Before the Hunter legislation, the City Council had rejected the idea of selling the property to the federal government.

“This is their last chance,” McElroy said of the Hunter bill. “We’re moving closer to finality.”