The U.S. Supreme Court offered a glimmer of hope for the Mount Soledad cross on Monday, July 3, when U.S. Supreme Court Justice Anthony Kennedy froze a federal court’s order that the city remove the cross by Aug. 1 or face $5,000 in fines per day.
The plaintiff and defendant are split in their interpretations over the stay, however.
While cross proponents claim the stay gives them time to advance appeals in federal and state courts, the plaintiff’s attorney believes that the stay is only temporary.
The Supreme Court has “simply issued a ruling saying that everyone will stay in a holding pattern until Justice Kennedy rules; he has not ruled on the motion yet,” said the plaintiff’s attorney, James McElroy. “As I understand it, we could get a ruling next week in which he would grant or deny the stay.”
The city had asked the Supreme Court to decide on the stay by July 5, McElroy added, so issuing this preliminary ruling is not uncommon.
McElroy represents Philip Paulson, the atheist who sued the city 15 years ago over the presence of the cross on municipal property.
Cross proponents disagree. This isn’t a preliminary stay; this is a freeze until the 9th Circuit Court of Appeals reviews the federal case and the state’s 4th Appellate Court rules on the constitutionality of Prop A, which appeared on the July 2005 ballot. Prop A proposed transferring the Mount Soledad memorial to the federal government. It was supported by 76 percent of the vote but was struck down as unconstitutional by the San Diego Superior Court.
Both appeals are scheduled for hearing in mid-October, months too late if a stay doesn’t halt the federal court’s injunction that the city remove the cross by Aug. 1 or face the fine.
“Why would (the Supreme Court) issue this decision only to come back and issue another decision before Aug. 1 saying we’ve changed our mind; we’re not going to grant a stay? That’s not a reasonable interpretation of this,” said Charles LiMandri, who represents San Diegans for the Mount Soledad National War Memorial, the group that petitioned to place Prop A on the ballot.
Issuing a stay is no small matter for the Supreme Court, LiMandri said. The justice must believe that at least four other justices would agree with the decision.
“People need to understand that the Supreme Court didn’t have to do this,” said Phil Thalheimer, co-founder of the war memorial group. “Obviously they have changed their minds on this: ‘This case may have merit and we want to hear it and it clearly has national implications.'”
In 2003, the Supreme Court refused to hear an appeal from the city concerning an attempt to sell the land to a private party, which was ruled unconstitutional in federal court.