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Stay of Soledad cross removal extended (to allow for potential review by SCOTUS as needed)
San Diego Union - Tribune ^ | 7/7/06 | Greg Moran

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.


TOPICS: Breaking News; Crime/Corruption; Extended News; Foreign Affairs; Government; News/Current Events; Politics/Elections; US: California
KEYWORDS: anthonykennedy; churchandstate; cross; extended; greatnews; justicekennedy; kennedygetsoneright; mountsoledad; mtsoledad; removal; scotus; soledad; stay
Justice Kennedy's opinion extending stay of Soledad cross removal (PDF)
1 posted on 07/07/2006 8:03:17 PM PDT by NormsRevenge
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To: NormsRevenge

"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.


2 posted on 07/07/2006 8:08:36 PM PDT by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: NormsRevenge

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!


3 posted on 07/07/2006 8:14:01 PM PDT by CAluvdubya (What's so hard to understand about the word illegal?)
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To: NormsRevenge

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.


4 posted on 07/07/2006 8:26:29 PM PDT by NinoFan
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To: NormsRevenge

Good...


5 posted on 07/07/2006 8:29:36 PM PDT by DoughtyOne (Al Qaeda / Taliban operatives: Read the NY Times, for daily up to the minute security threat tips.)
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To: Bigh4u2
Nothing there indicates that the SCOTUS would lift the block. Matter of fact, it's just the opposite.

Exactly. Kennedy's opinion reads so much against lifting the block (and he seems to be hinting to the lower courts, both the federal and the state, that they better get the law right) that the only explanation for this lawyer's statement is absurd spin. Justice Kennedy also says that he has considered whether the votes to grant cert in the future exist, and he thinks that they are there.
6 posted on 07/07/2006 8:43:29 PM PDT by NinoFan
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To: NinoFan
(and he seems to be hinting to the lower courts, both the federal and the state, that they better get the law right)

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.

7 posted on 07/07/2006 8:48:56 PM PDT by CAluvdubya (What's so hard to understand about the word illegal?)
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To: NinoFan
O'Connor denied him and the conservatives on the Court that opportunity for years."""

Thank God and Greyhound she's gone.

8 posted on 07/07/2006 8:52:07 PM PDT by churchillbuff
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To: NormsRevenge
"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."

"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.

9 posted on 07/07/2006 8:54:13 PM PDT by TheCrusader
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To: churchillbuff

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.


10 posted on 07/07/2006 9:10:43 PM PDT by NinoFan
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AP on Yahoo

Supreme Court stay upheld in cross case

http://news.yahoo.com/s/ap/20060707/ap_on_go_su_co/scotus_cross_dispute

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.


11 posted on 07/07/2006 9:14:21 PM PDT by NormsRevenge (Semper Fi --- Help the "Pendleton 8' and families -- http://www.freerepublic.com/~normsrevenge/)
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To: NormsRevenge

The great thing about all of this is that it exposes Dim Dems for what they are not.

Americans.


12 posted on 07/07/2006 9:17:11 PM PDT by funkywbr
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To: NormsRevenge

Phillip Paulson, thank you for serving your country in your day. Unfortunately, today you are a narcissistic *ss.


13 posted on 07/07/2006 9:18:39 PM PDT by doug from upland (Stopping Hillary should be a FreeRepublic Manhattan Project)
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To: NormsRevenge

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?


14 posted on 07/07/2006 9:22:09 PM PDT by sageb1 (This is the Final Crusade. There are only 2 sides. Pick one.)
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To: NormsRevenge
I despise the idea that in our democracy 9 unelected individuals sitting on high in DC can overrule the will of 76% of the voting residents in San Diego. Is this how our checks and balance system was intended to work? The Courts are out of control.
15 posted on 07/07/2006 9:29:18 PM PDT by Cognoscenti247
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To: Cognoscenti247

maybe, maybe not..

the words
'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.


16 posted on 07/07/2006 9:36:21 PM PDT by NormsRevenge (Semper Fi --- Help the "Pendleton 8' and families -- http://www.freerepublic.com/~normsrevenge/)
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To: NormsRevenge

Hooray to http://www.thomasmore.org/


17 posted on 07/07/2006 9:39:40 PM PDT by PGalt
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To: NormsRevenge

Fantastic! This case (and kicking the Boy Scouts off Balboa Park) is why I came up with my tagline.


18 posted on 07/07/2006 9:41:11 PM PDT by Squeako (ACLU: "Only Christians, Boy Scouts and War Memorials are too vile to defend.")
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To: Squeako
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.

19 posted on 07/07/2006 10:21:45 PM PDT by Charles Martel (Free Travis!)
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To: sageb1

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


20 posted on 07/07/2006 10:24:31 PM PDT by NormsRevenge (Semper Fi --- Help the "Pendleton 8' and families -- http://www.freerepublic.com/~normsrevenge/)
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To: NormsRevenge
"sorry for not replying earlier,.."

No problem at all. I wasn't around most of today. What is sticking in my mind about "tradition" and court decisions has to do with another decision not specifically (yet anyway) applied to the Mt. Soledad case. I'll see if I can try to find what it is I'm thinking about about so my question can be clarified.

21 posted on 07/07/2006 10:43:43 PM PDT by sageb1 (This is the Final Crusade. There are only 2 sides. Pick one.)
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To: NormsRevenge

Those homosexuals out there hate looking at that cross because it reminds them how sinful they are.


22 posted on 07/07/2006 11:12:52 PM PDT by garylmoore (Faith is the assurance of things unseen.)
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To: TheCrusader; All
"Cross proponents"? Is this some new media/leftist word for CHRISTIANS?

Don't be so small minded. The chairmen of the "Save the Cross" effort which got Prop A on the ballot and passed are practicing Jews (Phil Thalheimer & Myke Shelby). There are other faiths represented as well including, I think, an atheist.

23 posted on 07/07/2006 11:26:15 PM PDT by newzjunkey (Support Arnold-McClintock or embrace higher taxes with Angelides.)
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To: garylmoore
Those homosexuals out there hate looking at that cross because it reminds them how sinful they are.

Uh... homosexuals? Since when is atheist Phil Paulson a homosexual?

24 posted on 07/07/2006 11:33:29 PM PDT by newzjunkey (Support Arnold-McClintock or embrace higher taxes with Angelides.)
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To: NormsRevenge; All
Let's remember that Judge Thompson had *approved* of the sale of the land by the city, the 9th circus overruled his decision.
25 posted on 07/07/2006 11:34:48 PM PDT by newzjunkey (Support Arnold-McClintock or embrace higher taxes with Angelides.)
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To: TheCrusader
"Cross proponents"? Is this some new media/leftist word for CHRISTIANS?

No, it's not. It's not even a left/right argument. The cross wasn't put up by a government entity as a way of saying, this is a Christian Nation. This cross was dedicated as a memorial to Korean War veterans. It has a legitimate historical purpose and there are many non-Christians who support keeping it right where it is.

It should be noted that his country has survived because of the sacrifices of Christians, Jews, Buddhists, Wiccans, Atheists, Agnostics, etc... It has survived because we are an inclusive country that doesn't punish people for failing to toe a specific religious or idological line.

26 posted on 07/08/2006 12:00:24 AM PDT by jess35
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To: newzjunkey

Those homosexuals out there hate looking at that cross because it reminds them how sinful they are.
Uh... homosexuals? Since when is atheist Phil Paulson a homosexual?

Where did I say that? I was just making a statement as to why some people don't like looking at the cross.


27 posted on 07/08/2006 12:01:29 AM PDT by garylmoore (Faith is the assurance of things unseen.)
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To: NormsRevenge

I hate to rain on anyone's parade here, but how much have the endless lawsuits, legal challenges, and running of a ballot initiative on this issue cost San Diego taxpayers?

I would think that it would be cheaper to simply sell the site to a private party (say the VOFW) and be done with it. Even if the site was sold at a public auction, it would probably have taken less effort to run a fundraising drive than all this. And keep in mind that so long as this is kept in the courts, the opposition isn't being forced to put it's money where it's mouth is.


28 posted on 07/08/2006 6:19:20 AM PDT by RKBA Democrat (Lord Jesus Christ, Son of God, have mercy on me, a sinner!)
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To: TheCrusader

I think the two factors that are now favorable are Alito and Roberts


29 posted on 07/08/2006 7:35:15 AM PDT by pangaea6
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To: RKBA Democrat
I think the city tried to do that last year but the boobs on the other side went back to court claiming the city was not acting in good faith. The sale was reversed or canceled.
I agree with you its about money-- The ACLU wanting their pound of flesh from the taxpayers.
30 posted on 07/08/2006 8:10:02 AM PDT by a02001
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To: DoughtyOne

double good with a cherry on top


31 posted on 07/08/2006 8:20:42 AM PDT by dubyawhoiluv
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To: RKBA Democrat

I hate to rain on anyone's parade here, but how much have the endless lawsuits, legal challenges, and running of a ballot initiative on this issue cost San Diego taxpayers?

--


They have cost a lot to be sure but let me toss the inverse back at you.

How much does it cost us if we don't have the parade if you get my drift?

In this case regardless where the case is in the courts, the opposition ought to just keep their mouths shut, they've already done enough harm as is. jmo


32 posted on 07/08/2006 8:24:36 AM PDT by NormsRevenge (Semper Fi --- Help the "Pendleton 8' and families -- http://www.freerepublic.com/~normsrevenge/)
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To: NormsRevenge
Why is everyone praising Kennedy? He should have simply dismissed the original court ruling on the basis of its violation of both the 1st and 10th Amendments of the U.S. Constitution. No Federal Court has ANY jurisdiction WHATSOEVER over how a state or municipality deals with the issue of religion. The Constitution grants the Courts jurisdiction solely over the actions of Congress with respect to religion. The 10th Amendment protects the States and, by extension, municipalities from the intrusive arm of the Federal courts on this and dozens of other issues.

The Mayor of San Diego should long ago have announced that the court's ruling was unconstitutional, that he was officially nullifying it, and would pay no fines that the court ordered. I don't understand how we as a nation has stooped so low, and to unquestioningly cede so much power to the Judiciary that it has not been given by our Constitution.

33 posted on 07/08/2006 8:38:34 AM PDT by montag813
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To: NormsRevenge

It's not a cross. Some people just build giant lower case "t's"


34 posted on 07/08/2006 2:36:50 PM PDT by rfreedom4u (Native Texan)
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To: rfreedom4u

"giant t's"

Which sort of reminds me of one other proposal, namely that the cross be set up so that it recognizes religions in proportion to the local population's membership in each. We'd mount the 'wings' on hinges, then lower them for a portion of the day that was equal to the percentage of local residents offended by a cross. We figured the lowering would be from 3:12 to 3:14 each morning.


35 posted on 07/08/2006 3:00:58 PM PDT by ArmstedFragg
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To: jess35
"It should be noted that his country has survived because of the sacrifices of Christians, Jews, Buddhists, Wiccans, Atheists, Agnostics,"

Yeah, America would have been wasted long ago without all the blood spilled by Jews, Buddhists, Wiccans, Atheists and Agnostics. hah
Not that I don't appreciate what any of them may have done for our country, but this was, and still is, predominently a Christian nation. It's most of the others you mentioned that are flushing our nation down the toilet into a cesspool of moral decadence.

36 posted on 07/08/2006 4:23:49 PM PDT by TheCrusader
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To: NormsRevenge

I really think we need to start a big push to remove idiot judges like this. How many millions of dollars has this ridiculous lawsuit cost? How did it ever get this far?

This bozo is actually a Nixon appointee. He has evidently been handing down bad decisions for an entire lifetime. I hate to think how many other stupid things he has accomplished over his 36 year career on the bench.




Thompson, Gordon Jr.
Born 1929 in San Diego, CA

Federal Judicial Service:
Judge, U. S. District Court, Southern District of California
Nominated by Richard M. Nixon on October 7, 1970, to a new seat created by 84 Stat. 294; Confirmed by the Senate on October 13, 1970, and received commission on October 16, 1970. Served as chief judge, 1984-1991. Assumed senior status on December 28, 1994.

Education:
University of Southern California, B.S., 1951

Southwestern University School of Law, LL.B., 1956

Professional Career:
Deputy district attorney, County of San Diego, California, 1957-1960
Private practice, San Diego, California, 1960-1970

Race or Ethnicity: White

Gender: Male


37 posted on 07/11/2006 1:56:56 PM PDT by Cicero (Marcus Tullius)
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