Judge halts Mount Soledad cross transfer (Voters: "of the people by the people just not YOU people")

JAMES BAIRD / Union-Tribune

As votes were counted in the July 26 special election, the setting sun illuminated the cross on Mount Soledad.

SAN DIEGO – A Superior Court judge on Friday issued a temporary restraining order 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 issued a tentative 34-page ruling in the case, which questioned the constitutionality of Proposition A. The measure called for the city to hand the cross over to the federal government to be part of a national veterans memorial.

Cowett told the lawyers to return to court Oct. 3 to present their arguments regarding her opinion, which is filled with 24 pages of citations of case law.

She 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."

Cowett also ruled that the city's attempt to transfer the land to the federal government without compensation "for the purpose of saving the cross is also an unconstitutional aid to the Christian religion."

The judge found that memorial has predominantly "a religious purpose," and noted that secular war memorial events and adornments at the site were added only after legal challenges was threatened or initiated.

"To maintain the memorial, as it is presently, would demonstrate the government's lack of neutrality as to religion, shows a preference for one religion to the exclusion of other religions and non-religious beliefs, and aids one religion," she wrote. "To so rule 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.

James McElroy, the attorney for Philip Paulson, the atheist who sued more than a decade ago 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," he said. "The law demanded this result."

City Attorney Michael Aguirre and several council members had warned before the vote that Proposition A would not stand up to a legal challenge.

The short-handed council – now at six members because of the departures of former Mayor Dick Murphy and two councilmen convicted on federal corruption charges – needs five votes to pass any decisions. McElroy doubts enough votes supporting an appeal of the judge's ruling can be gathered.

"The city is the only party that can appeal," he 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."

Proposition A was passed in July by nearly 76 percent of San Diego voters, easily surpassing the two-thirds approval required. Just days before the July election, Cowett had ruled that the measure needed more than a simple majority to pass because the city charter requires a two-thirds approval for any change to the use of park land.

The measure called for the city to donate the cross, a set of memorial walls and the land around the La Jolla display to the U.S. Interior Department as a national veterans memorial.

The cross was built in 1954 to honor Korean War veterans. Granite walls bearing memorial plaques honoring all veterans were erected around it in 2000. The proposition was the third time since 1992 that San Diego voters were asked to authorize a transfer of the cross from city-owned land.

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 park land was put on hold while the sides tried to find a solution.

Federal courts struck down two sales of the cross to the Mount Soledad Memorial Association, which built and maintains the site as a veterans memorial. San Diego voters rejected a third sale in November.

The City Council put Proposition A on the ballot after a successful petition drive forced a reconsideration of a March vote against the federal land transfer.

Paulson first challenged the presence of the cross on public land in 1989.