Posted on 08/25/2006 2:01:35 AM PDT by South40
The local chapter of The American Civil Liberties Union filed suit Thursday to force the relocation of the Mount Soledad cross in the latest challenge over the constitutionality of the controversial La Jolla landmark. The suit, filed in federal court on behalf of a national Jewish war veterans organization and three other San Diego residents, is the latest step in an increasingly high-profile 17-year legal battle over the cross.
On Aug. 14 President Bush signed a bill that transferred the ownership of the cross and war memorial site to the federal government, specifically the Department of Defense.
The bill halted the legal process that seemed destined to lead to the removal of the cross, which has sat on city-owned land for decades.
In May, San Diego federal Judge Gordon Thompson Jr. moved to enforce a decision he handed down in 1991 that the cross had to be removed.
He found it violated the state constitution's ban on government preference for religion. He gave the city 90 days to comply or face $5,000 per day in fines. That set off a flurry of legal activity which culminated on July 7 when U.S. Supreme Court Justice Anthony Kennedy blocked Thompson's order – stopping the clock on the city, and allowing time for the congressional bill to move forward.
With the land now belonging to the federal government, the legal battle will be waged under how courts interpret the federal – not state – constitutional prohibition of government support for religion.
Cross supporters contend they have a better chance of winning under that federal analysis. But opponents, including the ACLU, contend that virtually nothing has changed with the handover of land ownership.
“The issue is still the same,” said David Blair-Loy, director for the ACLU in San Diego. “We believe it is equally unconstitutional under state law, or federal law, for the government to subsidize, promote or endorse the Latin cross.”
The ACLU lawsuit joins another challenging the recent land transfer filed Aug. 9 by Philip Paulson, the war veteran and atheist who originally sued in 1989 to get the cross removed.
That lawsuit will argue that the cross not only violates the U.S. Constitution, but also seeks to overturn this summer's congressional action which took control of the property, said James McElroy, Paulson's lawyer.
Both lawsuits will likely be consolidated, but will not be heard by Thompson, who has handled the cross litigation for 17 years. Instead the cases – assigned randomly by a computer – will be heard by Judge Barry Ted Moskowitz.
The lawyer for a group trying to preserve the cross predicted that the new lawsuits will fail.
“We just believe whatever arguments they have will be properly dispatched, and we will prevail,” said Charles LiMandri of the San Diegans for the Mt. Soledad National War Memorial.
The group is not named in the ACLU suit but LiMandri said they will join with the government to defend it.
These new developments come while two other legal actions in state and federal courts – both of which were in the works before the federal government took the land – are still pending.
But given the changed circumstances in the cross controversy, they may never be heard.
The city and LiMandri's group are appealing a ruling by a San Diego Superior Court judge which invalidated Proposition A. That measure, approved by voters last fall, would have allowed the city to transfer the property to the federal government.
The judge ruled the transfer showed an unconstitutional preference for religion under state law.
But now that the land is federal property by congressional, and not city, action, the issues in the case may be moot. LiMandri said his group will file papers dropping their role in the appeal next week.
McElroy said he has had informal discussions with city lawyers that they may also abandon that appeal.
“It really doesn't get them anywhere, and it is costing them money,” he said.
But Deputy City Attorney David Carlin said no decisions on what to do have been made. Any final decision would have to be made by the city council, which is on recess until Sept. 6.
A similar fate may befall the appeal in federal court. There, the city had tried to overturn Thompson's ruling in May to take the cross down within 90 days, contending it was an abuse of his judicial discretion.
With the cross no longer on city land, that appeal might also be irrelevant, said McElroy, and the city may also consider dropping it.
But Carlin said no decision on how to proceed on either case has been made. The city has another option aside from dropping the appeals. It could ask they be put on hold pending the outcome of the latest suits, said Carlin.
A decision would have to be made soon. Both cases are set for oral arguments in October.
( No more Olmert! No more Kadima! No more Oslo!)
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It's a damn disgrace that this Jewish Vets Org is in on this ACLU lawsuit. I'm Jewish and support the San Diego War Memorial with the Christian Cross.
F*** the ACLU. They undermine this nation. The ACLU connived with Muslim ACLU lawyers in Michigan to get that senile hack judge to rule against our NSA terrorist surveillance programs
It just grates on the ACLU something fierce. What a scummy, America hating group.</p>
The ACLU is AMERICA'S ENEMY. Can you imagine if they pulled the crap they pull during the democrat Roosevelt administration during his wartime presidency????
They would be put in camps with the Japanese citizens that were thought to be potential problems.
Internal Enemies Device
Wouldn't it be wonderful if one judge would not only rule against the ACLU on one of these frivolous lawsuits, but enacted a loser pays rule for legal fees? Then, they would not only not see their legal bills paid by the government, (as usually happens), but would have to pay the government's legal fees spent defending the status quo.
The ACLU doesn't have anything to say about land owned by Mexico and the way things are going Texas and California will be owned by Mexico. For the others I guess they will have a name change.
ACLU = Anti Christian League Union
These people are dangerous.
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