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.
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.
Those homosexuals out there hate looking at that cross because it reminds them how sinful they are.
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.
Uh... homosexuals? Since when is atheist Phil Paulson a homosexual?
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.
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.
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.
I think the two factors that are now favorable are Alito and Roberts
double good with a cherry on top
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?
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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
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.
It's not a cross. Some people just build giant lower case "t's"
"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.
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.
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.
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