Friday, December 01, 2006

State Appeals Court Upholds San Diego Voters' Transfer Of Mt. Soledad To Feds

Yesterday, another decision in the seemingly endless series of rulings relating to the Mt. Soledad Cross was handed down. The 29-foot, 24-ton Latin cross was erected by the Mt. Soledad War Memorial Association in 1954 on parkland belonging to the city of San Diego, California. Yesterday's decision, Paulson v. Abdlnour, (CA 4th Dist. Ct. App., Nov. 30, 2006), involved an Establishment Clause challenge to a decision by San Diego voters to "donate to the federal government ... the City's ... interest in the Mt. Soledad Veterans Memorial property for the federal government's use ... as a national memorial honoring veterans of the United States Armed Forces." The court held that the referendum on the issue, known as Proposition A, did not violate either the state or federal constitution's establishment prohibitions, nor did it violate the state constitution's "no preference" clause.

Reversing the trial court, the court of appeals held that it could not find that the predominant purpose of the voters in approving Proposition A was to advance religion. Nor was the primary effect the endorsement or advancement of Christianity. Nothing in Proposition A required the federal government to keep the Cross on the transferred property. Finally the court of appeals rejected the trial court's "troublesome proposition" that there was excessive religious entanglement between the City and the Thomas More Law Center because a TMLC attorney served as a special assistant to the city attorney.

This decision will have practical impact only if other litigation challenging the federal government's taking of the Mt. Soledad property by eminent domain is successful. That taking did not rely on the transfer authorized by Proposition A. (See prior posting.)

A report yesterday by City Wire discusses reaction to the decision.