Kennedy delays cross removal
on Jul 7, 2006 at 5:41 pm
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.
