The 15-year-old lawsuit over the legality of the Mount Soledad cross on city property will continue on past the Aug. 1 deadline imposed for removal by Judge Gordon Thompson Jr. to appeals in federal and state courts.
On Friday, July 7, Supreme Court Justice Anthony Kennedy confirmed his preliminary decision to “stay” the U.S. District Court’s order that the city remove the cross by Aug. 1 or pay a daily $5,000 fine. The stay will put the district court’s injunction on hold until pending appeals are heard before federal and state courts in mid-October.
In a four-page opinion, Kennedy wrote that although such a stay is “rarely granted,” the “relevant factors” make the stay appropriate.
“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,” stated the opinion.
Kennedy pointed to recent legislation yet to be considered by the courts as one reason for issuing the stay. Congress recently decided to deem the monument “a national memorial” and to authorize the Secretary of the Interior to take the title if offered by the city.
Congress’ desire to preserve the memorial would also likely affect the Supreme Court’s decision to hear the case if the other appeals fail.
“Although the court denied certiorari [judicial review] in this litigation at earlier stages, Congress’ evident desire to preserve the memorial makes it substantially more likely that four justices would agree to review the case in the event the court of appeals affirms the district court’s order,” Kennedy wrote.
The 4th Appellate Court’s decision to consider Prop A in mid-October also persuaded Kennedy to issue the stay, the opinion indicated. Passed by public vote last July, Prop A sought to transfer the memorial to the federal government but was struck down as unconstitutional by the San Diego Superior Court.
“If the state appellate court reverses the superior court and allows the memorial to become federal property, its decision may moot the District Court’s injunction, which addresses only the legality under state law of the cross’ presence on city property,” wrote Kennedy.
The Court of Appeals for the 9th Circuit will hear the city’s appeal to the district court’s ruling that the cross is unconstitutional in mid-October, around the same time that the 4th Appellate Court considers the Prop A appeal.