When we last discussed this story, on December 12, 2013 a US District Court judge had ordered the removal of the huge cross on the top of Mount Soledad, staying his order for 90 days until any appeals are filed and heard. The Ninth Circle Court of Appeals had ruled that the cross standing on federally owned land was a violation of the Establishment Clause and the situation needed to be remedied in some way and while the District Court judge said he disagreed with the ruling, given the constraints the Appeals Court had imposed, he saw no option other than its removal.
Republican congressman Duncan Hunter sees another solution. He has introduced a bill in Congress that would order the government to give the land, free of charge, to the Mount Soledad Memorial Association (MSMA), the private group that has been maintaining the memorial site and the cross.
What makes this ironic is that an earlier attempt in 1997 by the city of San Diego (which then owned the property) to do the same thing in a no-bid deal to the MSMA had been ruled invalid because the court ruled that the sale was a bad-faith attempt to preserve the cross. After many legal defeats to retain the cross on public land, in 2004 all the parties had agreed to settle the issue by moving the cross to a nearby church. But in 2006 Congress seized the property by eminent domain and since the cross now sat on federally owned land, this had led to the Establishment Clause violation ruling.
So because of this ruling, Congress is being asked to reverse its earlier action. I have no idea what the chances are of Hunter’s bill passing. It is not clear to me how, if passed, it would not be similar to the 1997 violation, but such considerations have never prevented our members of Congress from taking futile actions.