WorldNetDaily - Members of Congress, Again, Affirm U.S. Owns Cross - Brief Seeks Conclusion to Dispute Over Mt. Soledad Memorial

December 29, 2007
by WorldNetDaily.com

Dozens of members of Congress are asking a federal court to affirm the transfer of ownership of San Diego's Mt. Soledad veterans memorial to the federal government, and end a case that has encompassed nearly two decades.

The American Center for Law & Justice has filed an amicus brief on behalf of more than 30 members of Congress seeking a ruling that Congress, when it approved the transfer of ownership of the site, acted constitutionally.

"The federal government acted appropriately and constitutionally when it acquired the Mt. Soledad Memorial, a move that was overwhelmingly approved by voters of San Diego," said Jay Sekulow, chief counsel of the ACLJ.

"Over the years, there have been numerous state and federal challenges, all aimed at removing the memorial. Those attempts have failed and we're hopeful this latest legal challenge will not succeed. The federal government's ownership and operation of the memorial is proper and plays a vital role in ensuring that this important symbol honoring military veterans remains in place," he said.

The remaining issue in the case pending before U.S. District Court in San Diego is the transfer of the ownership of the memorial site from the city of San Diego to the federal government.

"Like all democratically elected bodies, Congress has a great interest in giving effect to the will of the people on issues of public importance," the brief said. "The widespread support among San Diego voters for the federal government's operation of the memorial cut across religious, political, and cultural lines."

"The pertinent question is whether the federal government's operation of the entire memorial is consistence with the Establishment Clause, not whether a Latin cross has religious meaning in various contexts," the group said.

The ACLJ represents 33 members of the 110th Congress, including Todd Akin, Gresham Barrett, Rob Bishop, Dan Burton, John Campbell, Eric Cantor, Steve Chabot, Michael Conaway, Barbara Cubin, John Culberson, John Doolittle, Tom Feeney, Virginia Foxx, Scott Garrett, Phil Gingrey, Louis Gohmert, Steve King, Jack Kingston, John Kline, Keeny Marchant, Patrick McHenry, Mike McIntyre, Gary Miller, Marilyn Musgrave, Sue Myrick, Randy Neugebauer, Steve Pearce, Joseph Pitts, Dana Rohrabacher, Tom Tancredo, Todd Tiahrt, Dave Weldon and Lynn Westmoreland.

The brief supports the city of San Diego and the U.S. government, who are defendants in a federal lawsuit that challenges legislation signed into law by President Bush in 2006 changing ownership of the site from the city to the federal government. The brief was filed in conjunction with Advocates for Faith & Freedom, a California law firm serving as co-counsel in the case.

The odyssey over the memorial was launched in the 1980s, and many thought it was resolved when Congress intervened in 2006.

"There is a reason the U.S. Supreme Court, Congress, and the president intervened in this case to protect the Mt. Soledad War Memorial: this nation honors those who gave the ultimate sacrifice to insure such public expressions of faith can continue in this country," said Pete Lepiscopo, of San Diego, an affiliate attorney for The Pacific Justice Institute, which also has worked on amicus briefs in the case.

The case is the only remaining litigation over the existence of the cross at the war memorial in California. It challenged a law signed by President Bush in 2006 that actually accepted the transfer of ownership of the site from the city of San Diego to the federal government.

The 9th U.S. Circuit Court of Appeals earlier dismissed a challenge targeting the city, since the federal government now controls the land. Several hundred thousand Americans, including 27,000 from California, also signed a petition assembled by the ACLJ to seek the preservation of the memorial.

The case to remove the cross originally was brought on behalf of an atheist, Phillip Paulsen, who died in 2006. The dispute dates back to 1989, and at one point the arguments included an order for San Diego to take the cross down. But in 1998 the city sold the property to the Mt. Soledad War Memorial Association, a move which again was challenged in court. The sale originally was upheld but later ruled unconstitutional by the full panel of the 9th Circuit Court of Appeals in San Francisco and remanded back to district court to work out a remedy.

Then Proposition A, passed by 76 percent of the voters in July 2005, called for the city to donate the cross to the federal government as the centerpiece of the veterans memorial. Finally, Congress stepped in and ordered the ownership of the land transferred to the federal government, a plan signed into law by President Bush.

As WND has reported, the cross was erected in 1954, and now honors veterans of World Wars I and II and the Korean War.

The latest decision from U.S. District Judge Larry Burns noted that the remaining plaintiff in the case, after Paulson's death, was Steve Trunk, but he had no standing to bring a complaint.

"Trunk has not met his burden of demonstrating he has standing to challenge the taking of the Mt. Soledad property by Public Law 109-272. This claim is therefore dismissed for lack of jurisdiction. His requests for a declaration that the taking violated his California state constitutional and U.S. Constitutional rights, and for the court to encourage the parties to abide by the earlier settlement agreement are likewise denied for lack of jurisdiction," the judge concluded.

"Trunk has not shown he has suffered an 'injury in fact,' consisting of 'an invasion of a legally protected interest which is concrete and particularized and actual or imminent, not conjectural or hypothetical," the court said.

The latest case alleging the transfer was filed after Congress and President Bush took action to affirm the memorial's ownership by the U.S. government.

Richard Thompson, chief counsel for the Thomas More Law Center, has been representing San Diegans for the Mt. Soledad National War Memorial in the case.