Wednesday, July 5, 2006
Page 1
Justice Stays Order for Removal of San Diego Cross
From Staff and Wire Service Reports
U.S. Supreme Court Justice Anthony M. Kennedy yesterday stayed a lower court order requiring the City of San Diego to remove a 29-foot cross from city property atop Mt. Soledad.
The city had faced $5,000-a-day fines had it not obtained a stay and left the cross standing after Aug. 1. Kennedy, without comment, issued the stay in his capacity as circuit justice for the Ninth Circuit, a post to which he was named following the retirement of Justice Sandra Day O’Connor.
Lawyers for San Diegans for the Mount Soledad National War Memorial asked for the stay in order to avoid the “destruction of this national treasure.” And attorneys for the city said the cross was part of a broader memorial that was important to the community.
The stay is the latest development in the long-running litigation over the cross.
The presence of crosses on the site has a long history, dating back to 1913, The Mt. Soledad Memorial Association erected the present cross with the city’s permission, and dedicated it as a veteran’s memorial in 1954.
A previous cross on the site was destroyed in a storm in 1952.
The presence of the cross on publicly owned land was declared to be an establishment of religion by U.S. District Judge Gordon Thompson Jr. of the Southern District of California in 1991, and the Ninth Circuit affirmed two years later. The city then attempted to satisfy the ruling by selling 222 square feet of land beneath the cross to the association at fair market value, with no request for bids and with an understanding that the cross would remain.
In 1997, the district judge ruled that the sale of such a small amount of land, without competitive bidding, to a group which expressly intended to maintain a religious symbol on it was unconstitutional. That ruling led to the 1998 sale, at which the memorial association acquired the land for $106,000.
But that sale was challenged by Philip Paulson, an educator, veteran, and avowed atheist backed by the Anti-Defamation League of B’nai B’rith and the ACLU. Paulson alleged that the bidding process leading to the sale was rigged in order to assure that the cross was not removed.
Paulson specifically challenged requirements that the property be used for a war memorial and that the bidders have experience in maintaining such memorials. He also objected to the city’s refusal to sell a larger parcel of land—the available parcel was about 15 percent of the property the city owned at the site—and its reservation of the right to reject the highest bid.
The Ninth Circuit, in a 7-4 en banc decision, agreed with Paulson.
The problem with the second sale, the Ninth Circuit ruled, was that if a bidder wanted a secular memorial, it would have to have enough money to outbid the field and to remove the cross, whereas the memorial association or another bidder wanting the keep the cross as part of the memorial could do so at no additional expense.
After the Supreme Court denied review three years ago, opponents of the cross went back to Thompson. The district judge’s ruling, described as “long overdue,” found the cross to be an unconstitutional display of government preference of one religion over another.
Last year, San Diego voters overwhelmingly approved a ballot proposition to transfer the land beneath the cross to the federal government, on the premise that federal land is not subject to the state constitutional strictures on which the court rulings to date have been based. But a San Diego Superior Court judge declared that measure unconstitutional.
Three Republican congressmen from the area are currently pushing to declare the site a federal war memorial.
Copyright 2006, Metropolitan News Company