Kennedy delays cross removal
Supreme Court Justice Anthony M. Kennedy on Friday afternoon postponed a federal judge’s order that would have required the city of San Diego to remove a Christian cross from city-owned land on a prominent hill, Mt. Soledad. Kennedy said that “the equities here support preserving the status quo” while the city pursues an appeal in federal court and a separate appeal in Califiornia state court. U.S. District Judge Gordon Thompson has ordered the cross removed from city property by Aug. 1, and has imposed fines of $5,000 a day if that is not done.
Justice Kennedy blocked that order in a four-page in-chambers opinion. (The opinion can be found here.)
The Justice issued a stay in response to a request from the city (application 05-A-1234). He denied as unnecessary a separate request for a stay from a war memorial group (application 05-A-1233).
In postponing the judge’s removal order, Kennedy said there would be “irreparable harm of altering the memorial and removing the cross” while there would be only “slight harm” in a brief delay while the Ninth Circuit considers the city’s appeal.
The Justice also found two other factors making the case “sufficiently unusual” — first, that Congress has passed a resolution treating the monument as “a national memorial honoring veterans” and has authorized federal officials to take title to the memorial if the city donates it, and, second, the city’s voters have approved a ballot measure authorizing the donation to the federal government. (The ballot measure has been struck down by a state court in California, but that is on appeal in the 4th District Califiornia Court of Appeal for expedited review.)
The Kennedy opinion did not mention it, but some city officials have said publicly that, if the transfer to the federal government is made with the aim of protecting the Christian cross, that would amount to a violation of the U.S. Constitution’s Establishment Clause. Any such transfer, if it is allowed by state courts, almost certainly will be challenged — and probably by the same San Diegan, Philip K. Paulson, an atheist who has been challenging the cross on city property since 1989.
Twice before, Kennedy noted, the Supreme Court had denied review of the Mt. Soledad cross controversy. But, on Friday, he said Congress’ passage of a measure to take over the memorial came after prior lower court rulings in the case, and “its effect on the litigation has yet to be considered.” And, despite the earlier Suipreme Court refusals to get involved, he added, “Congress’ evident desire to preserve the memorial makes it substantially more likely that four Justices will agree to review the case in the event the Court of Appeals affirms the District Court’s order.”
The pending litigation in state court, according to Kennedy, may deal with state-law issues bearing upon the federal judge’s removal order, providing guidance on the effect, if any, of Congress’ action toward the memorial.
“The respect due both to Congress and to the parallel state-court proceedings persuades me that the District Court’s order in this case should be stayed pending final disposition of the appeal” by the Ninth Circuit “or until further order of this Court. If circumstances change significantly, the parties may apply to this Court for reconsideration.” (The Circuit Court had denied a stay.)
On July 3, Kennedy had issued a temporary stay pending further review of the delay requests.
I am reminded of Alexander Pope:
“What mighty Contests rise from trivial Things”
Comment by federalist — July 7, 2006 @ 8:51 pm
federalist wrote:”"What mighty Contests rise from trivial Things” This is hardly trivial! The people of San Diego voted overwhelmingly to save this cross! This is supposed to rule, according to our Constitution!
Also, my friend, the Mt. Soledad Cross is NOT their only target! Try to picture ALL Federal cemeteries without crosses! Because THAT is their ultimate goal! Though the overwhelming majority of Americans believe in God, whether Christian or Jewish, the small atheist population (and then only a small activist group of them!) are trying to rule the rest of us! THAT is NOT DEMOCRACY!
Comment by Litl Bits — July 8, 2006 @ 11:13 am
Trivial, perhaps. The idea that a cross as part of a monument to veterans is an establishment of religion is certainly nonsensical, if not trivial.
Comment by SouthernConservative — July 8, 2006 @ 12:55 pm
Litl Bits,
I don’t know if you have looked at the constitution lately but we aren’t a democracy but rather a constitutional republic and the majority is not supposed to rule.
Yes the constitution respects the right of the people to be represented in governmental affairs but then it goes to great lengths to make sure that the majority can’t do whatever it wants. The presence of a senate with 2 senators per state regardless of size, the electoral college and other forms of indirect election are all clear examples of attempts to avoid the tyranny of the majority. Still, not convinced that majorities might not still be able to inappropriately impose their will they then added the bill of rights to specifically curtail what any majority no matter how large could do without ammending the constitution. Sure originally these didn’t apply to the states but, your precious majority (at least of the states not in rebellion) voted in the 14th (I think) which applied these restrictions to the states.
Besides, it is totally irrelevant what ‘THEY’ have as their ultimate goal. If I sue to stop some sort of governmental abuse it doesn’t matter if my ultimate goal is world domination or the forcible conversion of everyone to satanism. If in fact I establish a violation of law or the constitution my side should prevail.
I realize that you are probably just a troll but I do hear people say things like this and it blows my mind. There are reasonable (though I think invalid) grounds to think it is in error for a judge to prevent this sort of symbol. However, they have nothing to do with the majority being always right nor the ultimate aims of the plantiffs.
Comment by logicnazi — July 8, 2006 @ 3:12 pm
My post was a bit tongue in cheek. Personally, I think that this Paulson guy’s suit should be dismissed because “de minimis non curat lex”. Gimme a break. I am an atheist too, and I could not care less about a cross on public property. Basically, the federal courts have created a right of people not to be offended, which has resulted in all sorts of idiotic suits–this being one of them.
And, by the way, what these nonsense suits do is divide us. People of faith feel threatened and that their ideas are not welcome in the public square, which could have the effect of reducing tolerance, not increasing it.
The only thing trivial here is Paulson’s “injury”.
Comment by federalist — July 8, 2006 @ 6:33 pm
On equitable grounds, this sounds like a smart decision.
As to triviality, I reckonize there are more compelling religious freedom cases (not knowing CA law, I don’t know if there is a stronger case there), but I don’t think it totally so. A cross on an individual grave is appropriate, but a big cross for something honoring veterans in general is somewhat different. It has a favoritism taint to it. I personally am not as concerned with symbols and such, but many are.
Anyway, this makes me think of Kennedy’s Allegheny dissent where he suggests a permanent cross on top of a government building might be a step too far.
Comment by Joe — July 9, 2006 @ 11:42 am
I’d add that Breyer’s concurrence in Van Orden also comes to mind. Some dismissed it as confused, but bottom line was “this is too trivial to be upset about as compared to the recent/still active companion case.”
Many people take such an appropriate on these issues, even if it might be deemed too messy as doctrine.
Comment by Joe — July 9, 2006 @ 11:44 am
I’m wondering how many folks here have seen this cross and, for those who haven’t, what you imagine the scene looks like when you think about this case. This cross isn’t just a discrete private cross at a grave site (which I don’t think anyone would object to), or a modest cross on a pedestal at the entrance to a public cemetery (which I have trouble with, though I can see the other side). This cross is 43 feet tall, weighs 20 tons, is on the top of a mountain, and can be seen for well over 10 miles around. It’s very in-your-face wherever you go, not nestled in among the trees. (It’s also a very impressive sight on a clear night.) A major concern with the ten commandments cases was integration into a broader context. It’s much harder to integrate 20 tons than a knee-high cross.
Comment by mjsolomon — July 10, 2006 @ 1:24 pm