Skip to comments.Stay of Soledad cross removal extended (to allow for potential review by SCOTUS as needed)
Posted on 07/07/2006 8:03:15 PM PDT by NormsRevenge
U.S. Supreme Court Justice Anthony Kennedy ordered Friday that his temporary stay protecting the Mount Soledad cross extend until state and federal courts can hear the city of San Diego's appeal this fall.
In blocking a federal judge's order that the city remove the cross by Aug. 1 or face a daily fine of $5,000, Kennedy also indicated that the full court may want to review the controversial case.
Kennedy said the court, which refused three years ago to get involved in the dispute, may consider it because of two new factors favorable to cross proponents. He cited legislation to make the area a national veterans memorial and a successful ballot initiative in which San Diegans overwhelmingly voted to transfer the land to the federal government.
The move is a big boost for cross supporters and the city, which wants to preserve the La Jolla landmark. The cross is part of a memorial to war veterans, but has been ruled an unconstitutional preference for religion.
It's phenomenal news, said Phil Thalheimer, leader of a pro-cross group that is trying to get the federal government to gain control of the land. We're winning big.
James McElroy, the lawyer for Vietnam war veteran and atheist Phillip Paulson who sued in 1989 to remove the cross, said he was surprised and disappointed at the ruling.
I certainly understand the court's logic, but I disagree with it, he said.
In May U.S. District Judge Gordon Thompson Jr. gave the city until Aug. 1 to take down the cross or face the daily fine. Thompson, a San Diego federal judge, ruled in 1991 that the cross violated the state constitution's ban on government showing any preference for a religion.
The city appealed the deadline order, seeking to block it while its appeals in two courts proceeded. On Monday Kennedy issued a temporary order that froze action until he ruled again.
That ruling came late Friday afternoon. Kennedy issued a four-page opinion outlining his decision, an unusual step in such instances.
In it, he noted that there are two appeals pending one in federal court, and a second in state courts that could decide the fate of the cross.
Given that, as well as a congressional proposal to designate the cross a national war memorial, Kennedy said it was best to delay any move to take down the cross.
He wrote that in balancing all the arguments the equities here support preserving the status quo while the city's appeal proceeds. He also said it was likely that four justices on the high court would be willing to review the case if the federal appeals court upholds Thompson's order.
That bolstered Thalheimer. It's a strong indicator that no matter how the Ninth rules, the Supreme Court will take this case, he said.
Cross supporters believe they have a very good chance of winning if the case gets to the high court.
Kennedy also left the door open to perhaps dissolving the stay later, writing that if circumstances change significantly, the parties may apply to this court for reconsideration.
McElroy said he interpreted that to mean that if he wins in the appeals courts Kennedy would be willing to lift his order blocking removal.
The city has an October hearing in the federal appeals court to argue that Thompson abused his discretion when he issued his order in May to remove the cross.
The state court appeal focuses on Proposition A, passed last fall by 76 percent of the voters. It would hand the land over to the federal government, meaning the cross would no longer violate the state constitution.
But Superior Court Judge Patricia Yim Cowett ruled that the measure violated the state constitution because it showed a preference for religion, and amounted to aiding a religion.
The state appeals court in San Diego has placed that appeal on a fast track, meaning the case will likely be heard in the next couple of months.
"McElroy said he interpreted that to mean that if he wins in the appeals courts Kennedy would be willing to lift his order blocking removal."
Maybe Mister McElroy should have read a little better.
He also said it was likely that four justices on the high court would be willing to review the case if the federal appeals court upholds Thompson's order."
Nothing there indicates that the SCOTUS would lift the block. Matter of fact, it's just the opposite.
Woo-Hoo! Chalk one up for Kennedy. Looks like he got this one right! We voted and keeping the Cross is the will of the people!
Kennedy has long believed that crosses, commandments, creches, etc., on public property do not violate the establishment clause. Now he actually has five votes to make his view the holding of the Court. O'Connor denied him and the conservatives on the Court that opportunity for years.
This was my take on it also.
The lawyer is a kook and so is his client. This town voted overwhelmingly to keep the Cross right where it is.
Thank God and Greyhound she's gone.
"Cross proponents"? Is this some new media/leftist word for CHRISTIANS? No matter what the final outcome of this case, the fact that a legal debate about whether or not this cross is "constitutional" has climbed all the way up to the Supreme Court is just another sign of how far down the toilet our country has been flushed by the leftists.
This should not even be an issue in America, a nation that was founded by Christians, built by Christians, has prospered on the moral, religious and cultural princples of Christianity, and and has survived on the blood of Christians.
No kidding. With both her and Kennedy on the Court, conservatives rarely won a case, especially in the last few years. Now, with her off the Court, we at least have the opportunity to right some wrongs, if you will.
AP on Yahoo
Supreme Court stay upheld in cross case
WASHINGTON - The city of San Diego won a Supreme Court stay on Friday that blocks the removal of a large cross from city property.
Justice Anthony M. Kennedy said the temporary stay he authorized earlier this week should protect the cross until the San Francisco-based 9th U.S. Circuit Court of Appeals hears arguments this fall in a long-running dispute over the cross.
Kennedy also took the unusual step of explaining his decision, in a four page opinion, and suggested that he and his colleagues may be interested in a broader review of the case.1
"The equities here support preserving the status quo while the city's appeal proceeds," he wrote. "Compared to the irreparable harm of altering the memorial and removing the cross, the harm in a brief delay pending the Court of Appeals' expedited consideration of the case seems slight."
A lower court judge had ordered the city of San Diego to remove the cross or be fined $5,000 a day. The judge ruled that the cross, a symbol of Christianity, was an unconstitutional endorsement of one religion over another.
The 29-foot cross, on a half-acre site atop Mount Soledad in the La Jolla area, had been contested in 1989 by Philip Paulson, a Vietnam veteran and atheist.
The Supreme Court refused three years ago to get involved in the dispute. Since then, Congress agreed to make the area a national veterans memorial, and San Diego residents voted to transfer the land to the federal government.
Kennedy, a California native, said, "Congress' evident desire to preserve the memorial makes it substantially more likely" the high court would agree to hear the case now.
The great thing about all of this is that it exposes Dim Dems for what they are not.
Phillip Paulson, thank you for serving your country in your day. Unfortunately, today you are a narcissistic *ss.
Can someone help me here? Wasn't there a ruling or something that had to do with tradition that can be used as an argument here?
maybe, maybe not..
'In order to form a more perfect union' come to mind
our system isn't perfect ,, but it isn't the Comnstitution's fault for trying to set a high standard for those who follow it and are sworn to uphold it, both in the word and spirit intended thereof.
Faith and prayer were staples of the Founding Fathers, let's hope they are as powerful a tools or beliefs today as they were then.
Hooray to http://www.thomasmore.org/
Fantastic! This case (and kicking the Boy Scouts off Balboa Park) is why I came up with my tagline.
And a fine tagline it is. You did fail to include the Second Amendment in the "too vile to defend" list, though. Heck, it's to the ACLU as garlic is to a vampire.
sorry for not replying earlier,
technically the cross or specific area in question has been a war memorial for years if I am not mistaken, it hasn't been under federal control tho.
it was up to the city to continue to pursue legal action after the Judge shot them down in the latest round of legal action. They chose to do so with assistance from others and that is where we are today from a stay standpoint.
Congressional action to provide for relief may also be in the offing, so who knows how this may end, for now , the cross stands.. odds look much better than a few months ago, after the city voted in favor of a measure to keep it there thru whatever means necessary.. but the Judge ruled otherwise
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