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Mt. Soledad Cross Dispute Ends Quietly In Settlement

Navy Veteran Jim Wall climbs the stairs at Mt. Soledad on February 15th, 2014.
Nicholas McVicker
Navy Veteran Jim Wall climbs the stairs at Mt. Soledad on February 15th, 2014.

Mt. Soledad Cross Dispute Ends Quietly In Settlement
Mount Soledad Cross Dispute Ends Quietly In Settlement GUEST:Dan Eaton, attorney, Seltzer Caplan McMahon Vitek

Good morning and thank you for joining us. Our top story is atheist Christians and veterans have been arguing about a 29 foot cross on Mount Soledad in Lahore you for 27 years. This week it looks like the controversy is over. Originally on public land people objected to the cross saying it was an unholy violation of the separation of church and state. Supporters said it was a war memorial to veterans and it was fine. The parties are back in forth in court for decades but now the cross the land to which it stands having been sold to a nonpublic owner has gotten the approval of the parties involved and the ninth circuit Court of Appeals. Our legal analyst joins me to look over this monumental decision. Dan, thanks for coming in. As a matter of fact I want you to tell a story about the first time you think that you were ever on the show. It was in August 2006 was the first time we spoke by phone. We did a one off on the Mount Soledad situation because at that time around that time George Thompson had issued an order requiring the city who then owned the land and the cross to take it down or face a $5000 fine. Back to the present, why did the ninth circuit courts dismissed this case quite Because there's nothing to fight about anymore. In December 2014 the U.S. Congress passed the measure that required the federal government which then owned the land to transfer it to the Mount Soledad Memorial Association. And that sale took place around July of last year for about $1.4 million. Now that the cross and the memorial site is in private hands you are no longer talking about a constitutional question. The Constitution limits the ability of the government whether it is state, local or petrol to take steps that in any way endorse religion. It sounds like the fact that all people agree this is a fine deal means the price that the Association paid was fair market. That is true. The terms of the settlement are not limited to the fact that the Department of Defense received this money from the Mount Soledad Memorial Association. Presumably the original plaintiff was an atheist and a Jewish war veterans and replaced him. Presumably got some sort of attorneys fees paid as a result of the overall settlement that they referred to that will be executed now that the ninth circuit has ordered that the case be dismissed. The Defense Department got involved in this. Today by the land originally from the city of San Francisco quick It was transferred to them. It was part of the twist and turn as part of the lands from switching from the city to the federal government and a one point the Department of interior. There were all kinds of twists and turns and ultimately it wound up in the hands of the federal government which is where it stood as of the time Congress said even to this private Association so we can be done with any constitutional controversy over whether this Memorial Association may stand. This is a case that has been pushed by people who either were atheists or were sympathetic with them. Give us a little background on the issues in this case. It was originally brought up by SAT a man who was an atheist Saint this cross has historically at least in its inception was used for religious purposes and since Amesh is -- a message of their preference for religion. He brought this case in 1989 about one week before I got my lighter gray. -- Before I got my law degree. Judge Thompson issued the first order that set of violated the California Constitution prohibition on preferences for religion. And then it wound its way through eventually federal constitutional issues came down and there were threats of fines and actually the proponents of the cross did when one in 2008 with Judge Larry Burns who inherited this case. He said there was no violation but the night circuit Court of Appeals has been consistent in saying that this cross has to come down. This is been going on for such a long time. Here at the end, one thing we have learned is that the cross gets to stay where it is. Has this case taught us anything? Hasn't made any new law with regard to the establishment of religion or separation of church and state? Yes, I think it has. Especially in this circuit Court of Appeals. With respect to whether you can do this where the government is the owner. This case always came down to a single sentence. Is this a cross that incidentally includes a Memorial associate -- a federal Memorial or is this a veteran memorial that incidentally has across parks that is where the rubber meets the road. The ninth circuit in saying a 29 foot (cross on government owned land sends the wrong message. It sends a measured of government endorsement that is unacceptable. That law will continue notwithstanding. Now that they have solved the Mount Soledad cross case what are we going to talk about quick I know. The Constitution endures and there's all kinds of problems. The show used to be called these days because there is always a shifting landscape in the law. Dan Eaton is a San Diego attorney and he's also our legal affairs commentator. He joins us often on midday edition and he was talking today about the fact that the Mount Soledad cross case seems to have finally been settled. Dan, thank you very much. Thank you.

Motion To Dismiss Mt. Soledad Cross Lawsuit
The motion to dismiss the Mt. Soledad Cross lawsuit.
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After more than 25 years of legal battles over the cross on top of Mt. Soledad, the dispute has quietly ended in a settlement.

On Wednesday, the 9th Circuit Court of Appeals issued an order granting a motion to dismiss the case submitted to the court by the United States Department of Defense and the Mt. Soledad Memorial Association on Aug. 25.

The Department of Defense granted the land where the cross sits atop Mt. Soledad to the Mt. Soledad Memorial Association in July 2015 for $1.4 million as part of the National Defense Authorization Act passed by Congress in 2014.

Legal analyst Dan Eaton said the case was dismissed "because there's nothing to fight about anymore."

"Now that the cross is on private lands, there's no longer a Constitutional question," he said.

The legal battles over the cross began when the land was owned by the government. Plaintiffs brought a lawsuit that said a cross on public land went against separation of church and state. But supporters of the cross said it was a secular monument to military veterans.

In 2011, the 9th U.S. Circuit Court of Appeal ruled the cross violates the U.S. Constitution's establishment clause — which prevents the government from creating a national religion or church — and ordered the case returned to district court for disposition.

U.S. District Judge Larry Burns subsequently ordered that the cross be removed, pending further appeal. The U.S. Supreme Court twice declined to take the case.