WASHINGTON – Could one of the nation’s longest-running church-state conflicts be nearing a conclusion?
As part of a bill setting defense policy, Congress would authorize the defense secretary to transfer a scenic parcel of federal land in the La Jolla section of San Diego, to a private group. The parcel contains a memorial to the nation’s veterans and a 43-foot-high cross that federal courts have determined is an unconstitutional effort by the government to endorse a religion.
Tens of thousands of people visit Mount Soledad ever year to take in a view that includes the Pacific Ocean to the west, downtown San Diego to the south and the Laguna Mountains to the east. On the same hilltop sits the Mount Soledad Veterans Memorial. The memorial’s most dominant feature is a white cross that has been the focus of seemingly unending litigation.
Last year, a federal judge ordered the federal government and Defense Secretary Chuck Hagel to remove the cross. It was the judge’s response to a ruling two years earlier from the 9th U.S. Circuit Court of Appeals.
“There is no memorial on public land in which the cross holds such a pivotal and imposing stature, dwarfing by every measure the secular plaques and other symbols commemorating veterans,” Judge M. Margaret McKeown wrote in the appellate court’s decision.
Congress is entering the fray — again. This time, it’s through a bill the House passed Thursday and the Senate is expected to approve next week.
The measure calls for the land containing the memorial to be transferred to the Mount Soledad Memorial Association Inc., a group that has been maintaining the facility through membership fees, donations and placement of some 3,600 plaques honoring individual veterans. People, generally families of the veteran, pay a fee ranging from $950 to $1,800 to have a plaque installed.
The federal government has owned the land since 2006, when Republican Rep. Duncan Hunter authored legislation transferring ownership from the city of San Diego. At the time, the city faced fines of $5,000 each day if it did not remove the cross.
Now, Rep. Duncan Hunter Jr. is spearheading congressional efforts to keep the memorial and its cross through another land transfer. Hunter likened the cross on Mount Soledad to the crosses and stars of David that appear on the markers and gravestones at Arlington Cemetery.
“Each headstone is a minimemorial to the men and women who died and served,” Hunter said. “It’s the same thing. Ours is just a whole lot bigger.”
Hunter’s provision stipulates that the defense secretary convey the memorial to the local association after agreement is reached on price. The association and any subsequent owner would be required to maintain the structure as a veterans memorial in perpetuity.
If the secretary determines that the structure is used for any other purpose, the federal government will have the right to reacquire it on a temporary basis. He said he’s under no illusion the bill will appease the plaintiffs.
Then again, after more than a quarter century of litigation, no one familiar with the legal dispute will be surprised if this latest effort falls short.
A similar church-state conflict in California’s Mojave Desert was resolved two years ago when, as a part of a court settlement, a federal judge permitted the National Park Service to turn over an acre of land to a pair of veterans groups in exchange for five acres of property elsewhere in the desert.
Before the federal government acquired the memorial and its cross, the city of San Diego had tried to sell it to the Mount Soledad Memorial Association on two occasions. Neither attempt passed muster in the courts.
James McElroy, a local attorney, said he can’t say yet whether Congress’s latest effort will satisfy client Steve Trunk, an atheist and Vietnam Veteran who is suing the federal government. The Jewish War Veterans of the United States of America Inc. have joined Trunk in the suit.
McElroy said the plaintiffs have talked about a land transfer in the past to resolve the lawsuit. However, if the perception is that the government is undertaking the sale to save a religious symbol, “there may be constitutional issues with it.”
McElroy said he also has questions about whether the memorial association will pay a fair price for the property and whether it has the right to take the cross down.
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