Appeals court: Soledad cross measure constitutional

San Diego Union ^ | 30 NOV 2006 | Greg Moran

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SAN DIEGO – A San Diego appeals court ruled Thursday that Proposition A, a voter-approved 2005 measure which authorized transferring land underneath the Mount Soledad cross to the federal government was constitutional. The 3-0 ruling by a panel of justices from the 4th District Court of Appeal overturned a decision by Superior Court Judge Patricia Yim Cowett that invalidated the measure.

Cowett ruled that Proposition A violated the state constitution's ban on government preference or aid to religion.

The justices concluded that the initiative was religiously neutral and city voters did not endorse the establishment of any religion when they passed it by a huge margin.

“Given the language of Proposition A and the official ballot argument in favor of the proposition, we cannot conclude the individuals who voted for the proposition acted in order to establish the Christian religion or favor that religion,” wrote Associate Justice Patricia Benke in a 53-page ruling.

Proposition A was approved by 75 percent of San Diego city voters. The measure asked voters whether the land underneath the cross should be donated to the federal government.

But the result was challenged in state court by Philip Paulson, the war veteran and atheist who spent nearly two decades pursuing a legal challenge to get the cross removed.

Paulson, who died last month, argued that the measure violated the state constitutional ban on government aid or preference to religion.

Cowett agreed and overturned the vote. Supporters then appealed and on Oct. 17 – during an unusually long two-hour oral argument session – the panel of judges from the appellate court clearly seemed troubled by Cowett's decision.

They focused primarily on the act of transferring the land, and not on the larger constitutional issues of church-state separation and the legality of a Christian religious symbol on public land.

The ruling is the latest piece of positive news for supporters of the cross, who have waged an often-unsuccessful legal fight since 1989 to keep the La Jolla landmark in place.

That fight turned in favor of supporters this summer. As the deadline to move the cross approached, Congress stepped in and passed legislation – later signed by President Bush – taking the property and giving it to the Defense Department.

That changed the terms of the dispute. The cross had been deemed unconstitutional because it violated the state constitution's ban on government aiding religion. With the property now in federal hands, that basis no longer applies.

However, the latest transfer is now being challenged in a new round of lawsuits filed in federal court. Meanwhile, the Proposition A appeal remained alive.

In her ruling Benke said that federal government's move and the new lawsuits did not make the decision on Proposition A irrelevant. If the new federal lawsuits succeed, Benke said a decision that the measure is legal “will be of importance.”

“Passage of Proposition A, which was the result of public debate followed by a special election, is part of the continuing controversy,“ Benke wrote, referring to the 17-year legal battle. “Under the circumstances the public especially is entitled to a clear statement as to whether and why its action is, or is not, constitutional.”

Greg Moran: (619) 542-4586; greg.moran@uniontrib.co