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My friend Phil Paulson who typed the first brief of his law suit in 1989, didn't live to see this day. The Supreme Court finally, by refusing certiorari, affirmed the ninth circuit decision that the cross on public land that Paulson challenged, is, in fact, unconstitutional.  

As I have been spending this day revising and editing my website, Soledad Veteran's Memorial, certain things have become clearer about this long odyssey, and just how close we came to the outcome being different. I also have been focusing on attempting to change the tone of hatred that had permeated San Diego, where the cross is located. Since the first suit so long ago,  Paulson earned a new first name in the local press; not combat veteran, or professor, but atheist, always "atheist Phil Paulson" with contempt so clear it jumped off the pages of the Union Tribune.    

I tried to affect this change by getting a jump on the response to the decision, from anger to acceptance.  The hatred hadn't always been there.  There was a time when a resolution was at hand (from the history section of my website):

The Court further implored the parties to “settle this case! It’s time to move the cross from public land to private land and comply with the laws of our great country instead of trying to find sneaky ways to get around them to pander to a certain group or to satisfy an out-of-state group’s religious agenda.”

 The parties engaged in extensive settlement discussions over the course of several weeks and agreed to settle the case by moving the Latin cross 1,000 yards to a nearby church. Under the terms of the settlement, the MSMA would be allowed to maintain an interest in the Mt. Soledad property and war memorial, and the Latin cross would be replaced with a nonsectarian symbol that would appropriately recognize all veterans in exchange for an end to litigation. The settlement terms were presented to the City Council on July 20 and 27, 2004.

I happened to have had an extensive conversation with the CEO of Mount Soledad Memorial Association, , MSMA  and when I asked if the members voted on the above resolution, he said that the executive board voted unanimously to approve it.  He then went on to say that it was the local churches and politicians who fought the deal and not the members.  

Alito wrote a statement to accompany the notice of denial of certiorari that was in the spirit of what I now consider to be neo-Christian Dominationists who would water down our constitutional proscription against establishment of religion until nothing would stop this from being the Christian country of their dreams. It trivialized the decision, making it seem that it was not a confirmation of the unconstitutionality of the cross, but because it was not ripe.  It was absurd, as the only reason it was not ripe is the Supreme court was considering taking the appeal.

But, for this day, the good guys won.  The cabal of Alito, Thomas and probably Scalia, could not get the one additional vote to grant certiorari to review this brilliant and wise decision of the embattled Ninth circuit.  

I have more links and details on my website, and don't want to burden this diary with them, but it's here for those interested.  

This is something to celebrate.

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Comment Preferences

  •  Thank You! I have been waiting for a very long (9+ / 0-)

    time for the Constitution to win in something these days! It seems with FISA and NDAA and Citizens United, etc. I would still be waiting a very long time for the Constitution to win.

    This news cheers me up!

    •  The appeals court decsion was tightly... (7+ / 0-)

      and clearly expressed.  I'm sure there were three justices who wanted to take the case, even if were to write a powerful dissent waiting for Ginsberg or Breyer to retire.

      The term Christian Dominionists is a strong one, but these men would stop at nothing to keep this cross up, no matter how much hatred they need to foment.

      The veterans association are made up of decent people, but once hatred is unleashed, those who speak up for constitutional principles are smeared as wanting to "tear down our cross."

      Will it end now?  That's what I'm working toward, but there's a time to celebrate a win, and this is it.

  •  As you note, they couldn't get the 4th vote (7+ / 0-)

    I have no doubt you named 3 justices who voted to grant cert.  The fact that they couldn't get Roberts, that Roberts wouldn't go with them on the opinion that the entire Arizona abomination of a law should be upheld gives me a tiny glimmer of hope for this court.  Wishful thinking maybe.  But, if Pres Obama gets re-elected and there aren't more conservatives appointed to the supreme court, maybe things won't get worse.  (Citizens United, however, seems to be a settled precedent so no help from the court there.)

    Distrust all unreasoning fanatics - even those who agree with you

    by Anti Fanatic on Tue Jun 26, 2012 at 07:10:11 PM PDT

    •  Settled Precedent means less these days... (6+ / 0-)

      If Obama were elected, and were able to get a liberal justice, but who would be leaving.  The older ones are Ginsberg and Breyer, so at the best it won't get worse.

      If one of these are replaced by another conservative, it would be decades of pre FDR jurisprudence.  And these guys are not shy about overruling congress as we have learned.

      These guys remind me of Egypt's Military Tribunal, a law unto themselves who answer to no one.

      •  Maybe you're right (1+ / 0-)
        Recommended by:
        arodb

        The vote on the Montana law was a straight 5-4 with the dissenting opinion based on the argument that Citizens United was wrongly decided.  Still, as a lawyer, I'm just never hopeful about a court saying "oops, we goofed" especially without a substantial passage of time.

        Distrust all unreasoning fanatics - even those who agree with you

        by Anti Fanatic on Tue Jun 26, 2012 at 08:08:34 PM PDT

        [ Parent ]

        •  As a lawyer check this out.... (0+ / 0-)

          My comment two items below "and my local news...."

          I do not believe that it must go back to the district court at this time, other than to note the reversal. from the appeals decision:

          "We reverse the grant of summary judgment to the government and remand for entry of summary judgment in favor of the Jewish War Veterans and for further proceedings consistent with this opinion."

          the mass media here are describing this as a continuation something to go on for a few more decades.  I don't think an appeals court can prescribe a remedy, but it can't be just left to the district judge....I hope.

  •  Excellent news. (3+ / 0-)
    Recommended by:
    Shawn Russell, arodb, phonegery

    Thanks for reporting.

    Stonewall was a RIOT!

    by ExStr8 on Tue Jun 26, 2012 at 07:14:32 PM PDT

  •  This was difficult. (1+ / 0-)
    Recommended by:
    arodb

    Impressive work and reportage.
    Thank you.


    Reality: "The world doesn't work that way."
    Pluto: "So? Change the world."

    by Pluto on Tue Jun 26, 2012 at 07:52:00 PM PDT

    •  And my local news just had a law professor... (1+ / 0-)
      Recommended by:
      Pluto

      who said among other errors:

      The decision not to grant certiorari was unanimous.  All we know is there were not four votes to grant it.

      Alito gave the court's reason.  He actually spoke only for himself.

      It will be sent back to the original judge who was overruled to define an acceptable solution.

      The final instructions were vague,

      "We reverse the grant of summary judgment to the government and remand for entry of summary judgment in favor of the Jewish War Veterans and for further proceedings consistent with this opinion."
      Further proceeding are in my mind to certify an agreement among the two sides, not that he design a new monument.  But I've not been able to get confirmation from various lawyers involved.  
  •  Tipp'd & R'd. (more detail in the title please!) (1+ / 0-)
    Recommended by:
    arodb

    I knew about this but not about your friend Mr. Paulson.

    I'm very happy to learn this news today, and thank you very much!

    I stumbled on this, and may have missed it due to the generality in the title.  

    If I were an editor I'd go with something like

    Constitution Prevails in 23 Year Old Public Lands Cross Case
    But I'm just quibbling.  

    Thanks!

    •  I struggled over the title, not wanting it to be (1+ / 0-)
      Recommended by:
      Shuksan Tahoma

      too long,

      I wrote a similar one yesterday with the Soledad Cross in the title and very limited readership, so I tried this.  I guess I could make it longer next time

      I may repost later, and will take your suggestion.

  •  YES! (1+ / 0-)
    Recommended by:
    arodb

    I've thought that thing was an eyesore since I was a student at UCSD.  I mean, beyond the obvious religious issue, it was just aesthetically ugly.  As an atheist, naval officer, and lover of artistically-made things, I’m thrilled to see this finally reaching its end.  Hopefully, some church can give it a good home; I for one can’t wait to have a picnic up there without that monstrosity poisoning the otherwise gorgeous view.

  •  I was always amazed (2+ / 0-)
    Recommended by:
    arodb, reddog1

    that in the same sentence the "supporters of the cross" would argue that it was a "non-denominational war memorial" and then bemoan the fact that if it were taken down, they would have no place to celebrate their Easter sunrise survices!

    The notion by Christians that no one should be offended by their religious symbol  is the same as the view of racists in the south that flying a Confederate flag over their statehouse is just a "historical" symbol, and should not offend anyone either.

    As my father used to say,"We have the best government money can buy."

    by BPARTR on Wed Jun 27, 2012 at 07:46:02 AM PDT

    •  I am often amused (1+ / 0-)
      Recommended by:
      arodb

      by the tone of possession Xtians use in discussing "their" various seasonal holidays, such as Easter. With, apparently, no sense of either history or irony as to its / their origins.

      ::cough cough:: Christmas.

      Dream as if you’ll live forever. Live as if you’ll die today. -- James Dean

      by Mnemosyne on Wed Jun 27, 2012 at 10:47:17 AM PDT

      [ Parent ]

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