Supreme Court justice issues stay in Mt. Soledad cross case; stay a win for city

WASHINGTON — In a victory for conservative and veterans groups, the Supreme Court July 3 stepped in to the Mount Soledad cross case, issuing a stay and removing the possibility — at least temporarily — of imposed fines on the city of San Diego while the appeals process plays out.

Justice Anthony M. Kennedy, acting alone on behalf of the court, issued the stay, less than a week after San Diego petitioned the court with the request. Kennedy's temporary hold was granted without comment pending a further order from the court on the cross' future, the Associated Press reported. The stay could be made permanent or could be lifted at any time.

The high court's intervention comes two months to the day after U.S. District Judge Gordon Thompson Jr. ruled that the cross that crowns the Mount Soledad National War Memorial in San Diego must be removed from public property before Aug. 1 or the city will face fines of $5,000 per day that it remains in place.

After the 9th U.S. Circuit Court of Appeals in California decided not to issue a stay in the case June 21, the city of San Diego took their case to the Supreme Court even as the city attorney doubted that the court would act on their behalf.

The 29-foot Mount Soledad cross was dedicated in 1954 as a memorial to those who fought and died in the Korean War. The American Civil Liberties Union field suit on behalf of an atheist to have the cross removed.

By his action, Kennedy, who overseas the 9th Circuit in stay requests, has given the city and cross supporters more time to exhaust their legal options -- specifically with California's 4th District Court of Appeals, which said June 21 it would expedite the hearing of an appeal of a ruling by California Superior Court Judge Patricia Cowett. Her ruling said a ballot measure on the cross approved by 76 percent of the city's residents was unconstitutional.

The measure would have transferred ownership of the cross property from the city to the federal government after President Bush signed a bill allowing the government to assume responsibility for it.

Meanwhile, the Supreme Court's stay provides more time for the Bush administration to explore ways they might save the cross, which could include seizing the land through eminent domain. Also, a bill has been introduced in the U.S. House of Representatives to transfer ownership of the war memorial — including the cross — to the Department of Defense.

Veterans groups and several conservative legal groups have entered the Mount Soledad case with goals of saving the cross. The American Legion June 28 filed a friend of the court brief in hopes of preventing further attacks on memorials containing religious imagery or references.

"We are particularly concerned in this case that a dangerous precedent could be set that would endanger veterans' memorials across America, perhaps even the 9,000 crosses that mark the final resting places of our World War II heroes at Normandy Beach," Thomas L. Bock, national commander for the American Legion, said.

The cross came under fire from a San Diego atheist, Philip Paulson, and his American Civil Liberties Union-funded lawyer, James McElroy, more than a decade ago. In 1989, Paulson filed suit against the city of San Diego, claiming that the presence of the cross on city property violated the California constitution's provision on separation of church and state. A 17-year legal battle ensued.


BP News with reporting by Erin Roach.