I just heard this brief bulletin on KPBS San Diego driving home within the last half hour. Here is the stub of the report, with no more details from the local newspaper, The U.T. The comments on the story are flowing, so we can get a hint of the public reaction from them. This is the newspaper that lead the resistance to the many court decisions that have now gone on a quarter century, with the motto, "Save our Cross." It will be interesting to see if they now will foment more hatred or accept the law of the land.
"A federal judge had ruled that the Cross on Soledad Mountain in LaJolla is unconstitutional"
This was the diary posted here June 26, 2012 after the Supreme Court Refused Cert on the appeals decision:
After 23 years, Constitution Prevails on Solidad Cross
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.
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.”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.
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.
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.
While the federal circuit court now seems definitive, it had seemed so after several decisions previously, but and I would suspect that there may still be other delaying tactics. The city of San Diego is now without a Mayor, which may complicate the issue, something I will go into in an additional edit if there is interest.
9:00 PM 12/12/13
I have just received from the lawyer from the ACLU the text of the decision. This decision explicitly removes the possibility of further compromise, as the order is to "remove the cross." With the both parties' approval the judge stayed execution until the expected appeals to the appellate court and the Supreme court are completed.
Following is excerpt from decision complete copy is available here
It is particularly appropriate for the Court to issue a decision that advances this case to finality so that this question of “substantial importance” can be clarified, perhaps by the U.S. Supreme Court.The article in the sole daily newspaper linked in the introduction above is excerpted below. It references unnamed sources on substantive details of the negotiation that are inconsistent with the words of the decision, yet do give an impression given the tone that it was the plaintiffs who refused the reasonable compromise mandated by the appeals decision. This is an example of how spin and distortion can be disseminated in a monopolized newspaper market without any opportunity for effective rebuttal.
For all these reasons, this Court concludes that it's time for resolution; it's time for
finality. The motion to stay the judgment in this case is DENIED.
Conclusion and Order
As directed by the Ninth Circuit's decision, this court ENTERS SUMMARY
JUDGMENT IN FAVOR OF PLAINTIFFS, and finds as follows: By continuing to permit the
current cross to be displayed as part of the Mount Soledad Veterans Memorial, both the
United States and Secretary Charles Hagel are violating the Establishment Clause of the
First Amendment to the U.S. Constitution. Therefore, these Defendants are now
PERMANENTLY ENJOINED from displaying or continuing to allow the display of the current cross on federal land as part of the Mount Soledad Veterans Memorial. Within 90 days of the date of this order, Defendants are ORDERED to remove the cross. At Defendants’ suggestion, and with Plaintiffs’ consent, the order to remove the current cross is STAYED pending the resolution of any appeal.
On Thursday, attorneys appeared before Burns to try to come to some kind of resolution. Different ideas were tossed around, including posting signs around the 29-foot cross that sits atop a 14-foot base. The signs would have made it clear the cross is not an endorsement of religion.The decision was published on the Thursday that this article was published, so either the discussion among lawyers was some previous Thursday, or the Judge treated this important attempt for a compromise that was mandated by the appeals court with no seriousness at all. The article's statement that there was a suggestion to reduce the height of the cross was never mentioned in the decision so obviously was not a formal proposal. If this had been a compromise suggested by the defendants it could have been the basis for the alternative symbol that was mandate by the appeals court.
Other ideas included putting the land up for public auction or lowering the monument 10 to 15 feet so it’s not as visible from Interstate 5.
Physically altering the cross was found not to be viable. In the end, Burns said he felt his hands were tied and there was little room to maneuver around the 9th Circuit’s ruling of unconstitutionality.
I am attempting to get interviews with those present to report what actually happened.