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Kennedy extends Soledad stay; hints high court may hear case

WASHINGTON (BP)–U.S. Supreme Court Justice Anthony M. Kennedy July 7 extended the stay he had granted earlier in the week in the Mount Soledad cross case, saying congressional legislation and a vote by the people of San Diego to keep the cross in place may be enough to get the high court’s attention on the matter.

Kennedy, a California native and the justice assigned to the Ninth Circuit Court of Appeals, said his duty was to “try to predict whether four [Supreme Court] Justices would vote to grant certiorari,” or would hear the case, if the Ninth Circuit affirms a lower court’s order for the city to remove the cross by Aug. 1 or face fines of $5,000 a day. A minimum of four of the nine Supreme Court justices must agree to hear a case in order for arguments to proceed.

“Although ‘a stay application to a Circuit Justice on a matter before a court of appeals is rarely granted,’ … consideration of the relevant factors leads me to conclude that a stay is appropriate in this case,” Kennedy wrote in a four-page decision suspending fines until the Ninth Circuit or the Supreme Court rules on the cross case.

The Ninth Circuit, which refused to grant a stay in the case last month, is scheduled to hear oral arguments beginning Oct. 16.

In his decision, Kennedy wrote that “the equities here support preserving the status quo while the city’s appeal proceeds. Compared to the irreparable harm of altering the memorial and removing the cross, the harm in a brief delay pending the Court of Appeals’ expedited consideration of the case seems slight.”

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

Two further factors make the cross case “sufficiently unusual” to warrant granting a stay, Kennedy wrote. The first is that Congress passed a law in 2004 designating the monument as “a national memorial honoring veterans of the United States Armed Forces” and authorizing the Secretary of the Interior to assume ownership of the memorial on behalf of the United States if the city offered to donate it.

The second factor, Kennedy wrote, is that 76 percent of San Diego voters approved a ballot measure last July authorizing the city to donate the monument to the federal government. A Superior Court judge in California ruled the measure unconstitutional, but California’s 4th District Court of Appeals said in June it will expedite a hearing on supporters’ behalf to uphold the constitutionality of the vote.

Even though the Supreme Court has refused to hear the Mount Soledad case three times in its 17-year legal battle, Kennedy wrote that the action by Congress adds a new dimension to the case that could prompt a different outcome this time. He implied that the Supreme Court could take up the case eventually.

“Although the Court denied certiorari in this litigation at earlier stages, 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,” he wrote.

The American Center for Law and Justice, a conservative legal group that filed a friend of the court brief with the Supreme Court on behalf of 22 members of Congress, said Kennedy’s decision “ensures the issue will receive the legal attention it deserves.”

“The decision to extend the stay and keep the Mt. Soledad cross in place is not only a critical victory but represents an extremely important legal development as this case unfolds,” Jay Sekulow, chief counsel of the ACLJ, said in a news release July 10.

“In taking the unusual step to extend the stay, Justice Kennedy clearly understands that the legal appeals must move forward and that the action taken by Congress to designate the cross as a national war memorial cannot be ignored. By extending the stay, there is now time to fully litigate this case and explore every option — both legally and legislatively — to keep the cross in place. This is a significant case that now has the attention of the Supreme Court.”

Chris Clark, pastor of East Clairemont Southern Baptist Church and a member of the group San Diegans for the Mount Soledad National War Memorial, told Baptist Press he is “delighted” with Kennedy’s decision but not surprised by it because of the “rightness” of the appeal cross supporters are making.

Until Kennedy’s decision, judges in lower courts were only looking at the Soledad case in light of the California state constitution, not the U.S. Constitution, Clark said. California law is more specific than federal law on the matter of crosses on public property, he said, because the state prohibits the government from giving any preference to religion.

Clark also expressed optimism about the case’s chances at the Supreme Court.

“The fact that the makeup of the Supreme Court has changed dramatically in just one year had to factor in to Justice Kennedy’s decision, in my opinion,” Clark said, alluding to the addition of Chief Justice John Roberts and Associate Justice Samuel Alito. “I feel pretty confident that we’ve got the justices on the Supreme Court who would be willing to look at this.

“[All along] I felt pretty confident that if we could get it to the Supreme Court level, even just with Justice Kennedy, we could get a favorable ruling,” Clark added. “Solomon was right in Proverbs where he said the king’s heart is like water in the Lord’s hand — He can turn it any way He wants. And that goes for Supreme Court justices as well.”

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  • Erin Roach