High Court's Stay Only Temporary; Cross Battle Must Go On, Say Attorneys
by Jody Brown
July 5, 2006
(AgapePress) - - At the emergency request of a Michigan-based legal group, the U.S. Supreme Court has intervened in the battle to save a memorial cross sitting atop a hillside in a San Diego suburb.On Monday, Supreme Court Associate Justice Anthony Kennedy issued a temporary stay that guarantees the huge concrete cross integrated into the Mt. Soledad National War Memorial will remain where it is until further order of the high court. The cross, which was erected in 1954 as part a memorial to the nation's military veterans, has been the center of a legal give-and-take since an ACLU-backed atheist sued for its removal in 1989, claiming it violated the Establishment Clause of the U.S. Constitution. Most recently, the city of San Diego was under court order to remove the cross by August 1 or face a daily fine of $5,000.
Kennedy's order stays that court order -- and effectively allows other appeals already in process to continue on behalf of those who wish the cross to remain standing where it has been for more than five decades. The Thomas More Law Center, which since 2004 has taken the legal lead in the fight to save the Mt. Soledad cross, welcomes Kennedy's ruling, but is quick to point out the cross is not out of the woods yet.
"This is great news for our veterans and fallen war heroes," observes the Law Center's president and chief counsel, Richard Thompson. "However, the fight to save the cross is far from over. [Justice Kennedy's] temporary stay order can be changed at any time by either himself or the full Court." Consequently, says Thompson, all avenues to save the cross must continue to be pursued -- in the courts as well as on Capitol Hill.
The Law Center is directly involved in appeals with the California Court of Appeals and the Ninth U.S. Circuit Court of Appeals. Other cross supporters are seeking the White House's intervention, asking President Bush to exercise the federal powers of eminent domain to take the land on which the memorial sits in order to maintain the land as a national monument (see online petition). One year ago voters in San Diego overwhelmingly approved such a move, but a San Diego judge later invalidated that vote and ruled transfer of the land to the federal government unconstitutional.
Law Center attorneys have remained optimistic throughout, however. Attorney Charles LiMandri, who has spearheaded the Center's defense of the memorial cross, agrees with Thompson in that Monday's stay indicates the case is far from over. "While [Kennedy's] stay is only temporary, it is evident that the Supreme Court is interested in this case," he comments.
According to a press release from the Law Center, the nation's highest court considers three factors when deciding whether to grant a stay: (1) whether it is reasonably probable that four justices will consider the issue sufficiently meritorious to grant a stay; (2) whether there is a fair prospect that five justices will conclude the case was decided erroneously; and (3) whether there is likely irreparable damage if the stay is denied. The Law Center's Robert Muise offers an argument on that third point.
"It would be a national tragedy to tear down the memorial cross," says Muise. "It would cause irreparable harm to the citizens of San Diego, and [to] the many family members, friends, and comrades of the nearly 2,000 veterans who are honored by this memorial for their sacrificial service to this country."
Muise authored the emergency application submitted to Justice Kennedy. In that application Muise argued that the case presents a serious question regarding the place of religious symbols in public life in America. The Mt. Soledad case, he said, would give the high court an opportunity to revisit its Establishment Clause jurisprudence -- which many on the Supreme Court, including Kennedy himself, have noted is in need of substantial revision.
