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9th Circuit Court denies stay in Mt. Soledad cross lawsuit; supporters remain hopeful


SAN DIEGO (BP)–Supporters of the 29-foot cross displayed at the Mount Soledad National War Memorial in San Diego picked up both a defeat and a victory June 21 as the 9th U.S. Circuit Court of Appeals chose not to suspend a $5,000 daily fine that a federal judge will impose if the cross is not moved, while California’s 4th District Court of Appeals said it will expedite a hearing on supporters’ behalf.

U.S. District Judge Gordon Thompson Jr. ruled in May that the city of San Diego would be fined for each day the cross remains on public grounds after a 90-day period that is set to expire Aug. 1. The city, led by Mayor Jerry Sanders, appealed the ruling, but the 9th Circuit refused to step in and grant a stay until appeals currently pending in state courts can he heard.

On the same day, the 4th District informed Charles LiMandri, attorney for the group San Diegans for the Mount Soledad National War Memorial, that the court would soon grant a hearing of an appeal of a ruling by California Superior Court Judge Patricia Cowett which said a ballot measure approved by 76 percent of the city’s residents was unconstitutional.

Proposition A 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.

Chris Clark, pastor of East Clairemont Southern Baptist Church and a member of San Diegans for Mount Soledad, told Baptist Press he has no way of predicting when the 4th District might hear the appeal, but he hopes it is before Aug. 1.

“The encouraging thing there is that [the 4th District] court has a reputation for being a little more conservative in their rulings,” Clark said. “The thing that’s even more encouraging is if they go ahead and rule to overturn Cowett’s ruling, then at that point the property there at Soledad will then go ahead and — per Proposition A — be turned over to the federal government.


“Then that makes Judge Thompson’s ruling moot because the city of San Diego then would not have any kind of jurisdiction to go on to federal property and remove the cross,” he added.

Also, Clark said the struggle is not yet lost because the White House is continuing talks with the mayor, exploring the possibility of acquiring the property through eminent domain.

Clark said that since the 9th Circuit refused to stop the clock on the matter, the White House may be more inclined to work with urgency toward a resolution, especially given that more than 450,000 e-mails in support of the cross have been sent through the American Center for Law and Justice and the American Family Association.

“I would encourage people to realize that this battle is still not over. If this were a football game, we’re not even to the two-minute warning yet,” Clark said. “We still have plenty of time. There are still plenty of things that need to happen and can and will happen before this thing is all over. We need people across the country to continue to e-mail the White House.”

Cross supporters should not underestimate the power of public sentiment in this case, Clark added, because it has caused the White House to consider the issue “with a little more than a passing interest.”

Another option city leaders are entertaining is that of appealing to the U.S. Supreme Court. City Attorney Michael Aguirre said he believes the placement of the cross on public property is unconstitutional, but he considers it the city’s duty to exhaust every legal option in order to respect the will of the voters.

“Voters passed the initiative so our obligation now is to try and defend it,” he told the Associated Press.

Clark said city officials have expressed doubts that the Supreme Court would be willing to hear the cross case, but he believes that is because they’re not considering that the composition of the court has “changed rather dramatically” since the last time the city petitioned the court in 2003.

Three years ago, the Supreme Court refused to hear an appeal in support of the cross after the city tried to sell the property to a private buyer.

“Even before Sam Alito came onto the Supreme Court, this Supreme Court had brought down some rather important rulings on First Amendment rights concerning the Ten Commandments — that the Ten Commandments can be displayed outside the Supreme Court in Texas on state property,” Clark said, referring a decision handed down a year ago. “They’ve given some pretty strong rulings on that, and I think there will be five or six justices that if this case were brought before the Supreme Court they would be more prone to issue a landmark kind of ruling on the establishment clause in the First Amendment.”

The Mount Soledad cross came under fire from a San Diego atheist, Philip Paulson, and his ACLU-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.

Clark told BP he believes it is important to continue the fight for the cross for two reasons.

“If we did not take a stand for our rights as guaranteed under the First Amendment, we would be neglecting our duties as citizens to call for our rights that were provided for us under the United States Constitution,” he said.

“We need to remind everybody that when we look at a cross or a symbol of our faith such as what we see on Mt. Soledad, that symbol contains a message,” Clark added. “The message is that of the cross, which Paul said is foolishness to those who are perishing but to those being saved it is the power of God. It’s imperative for us as Christians to continue to proclaim that message, but if we roll over and allow these symbols to be taken down out of fear of offending someone, then how strongly do we believe that message? How strongly are we convinced that that message is the power of God?”