Jurist Puts Hold on Order to Remove Mt. Soledad Cross

The U.S. Supreme Court on Monday gave the city a reprieve from an order by a federal judge to remove the cross atop Mt. Soledad by Aug. 2 or face $5,000 a day in fines.

Justice Anthony M. Kennedy ordered a delay until he or the entire court issues a further order. He did not indicate how long that might take or what kind of order might be issued.

Mayor Jerry Sanders said he hopes that Kennedy’s order means that the court ultimately will decide to hear the case, although it has twice rejected the city’s bid for a hearing.

“Hopefully, the high court will allow us to make our case,” Sanders said at a City Hall news conference.

Councilman Jim Madaffer called the order “a major accomplishment” for attorneys fighting on the city’s behalf. City Atty. Michael Aguirre said the addition of two new justices since the court last rejected the case three years ago might bode well for San Diego.

“Have faith in the Supreme Court,” he said.

But San Diego attorney James McElroy, representing a military veteran and atheist who has sued for 17 years to have the cross removed from public land, said he believes Kennedy’s order will be only a brief delay until the justice can consider, and probably reject, the city’s bid for a hearing.

In the end, McElroy said, the city cannot escape a litany of court decisions about having a cross on public land.

“It is just such a strong religious symbol that it shows a governmental preference for that religion over all others,” McElroy said in a telephone interview.

In May, U.S. District Judge Gordon Thompson, sitting in San Diego, ruled that the cross, erected in 1954, violates the constitutional separation of church and state and must be removed. Thompson made the same ruling in 1999 but it was delayed by appeals.

Sanders and the City Council have vowed to continue fighting to retain the 43-foot-tall cross, one of the city’s most visible landmarks.

The city contends the cross is a war memorial, not merely a religious symbol.

But Carl Tobias, law professor and constitutional scholar at the University of Richmond in Virginia, said he tends to agree with McElroy.

He called Kennedy’s ruling “fairly typical” when justices want some time to further review an issue. “He’s just maintaining the status quo,” Tobias said.

Sanders has appealed to President Bush to turn the site into a federal war memorial. Three Republican members of Congress have sponsored legislation to have the U.S. government take possession of the property.

One of the three, Rep. Duncan Hunter (R-El Cajon), hailed Kennedy’s order as “promising news” because it provides time for further efforts “for protecting this historic landmark.”