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High court intervenes to spare San Diego cross

Associated Press

The U.S. Supreme Court Monday put on hold an order to remove a monumental cross that sits on public land, giving hope to supporters just weeks before the cross was to be taken down.

Justice Anthony M. Kennedy, acting for the high court, issued a stay of a lower court order to remove the 29-foot cross by Aug. 1, buying time for the city of San Diego and other cross supporters to continue their fight in state and federal appellate courts.

The city argued the cross was part of a broader memorial that was important to the community. San Diegans for the Mount Soledad National War Memorial joined the city's appeal, saying that they wanted to avoid the "destruction of this national treasure."

In May, U.S. District Court Judge Gordon Thompson, Jr., declared the cross, a symbol of Christianity, was an unconstitutional endorsement of one religion over another. Thompson ordered the city to take down the cross or pay daily fines of $5,000 starting Aug. 2.

Phil Thalheimer, chairman of the war memorial group, said the ruling "borders on divine intervention."

"We were jumping up and down," he said. "For this to happen on July 3 - the day before our Independence Day, which is about freedom of speech, freedom of religion, freedom of expression - it couldn't have happened better."

U.S. Rep. Duncan Hunter, R-Alpine, said the stay was "the right decision." Hunter, along with Mayor Jerry Sanders, asked President Bush in May to exercise his power of eminent domain and take over the half-acre cross site atop Mount Soledad.

The cross, on a scenic hilltop perch in the upscale La Jolla area, was contested in 1989 by Philip Paulson, a Vietnam veteran and atheist.

The ruling drew mixed reviews from a smattering of tourists and visitors to the cross.

Tony Galvin of San Diego said he understood the principle of separation of church and state but called the cross "a special case."

"It's been here for a long time," he said. It's part of San Diego's fabric and it really should stay as is."

Rick Peters of San Diego said the cross was unfair to other religions. "I think it's good there's a cross here, but they ought to put other symbols here," he said.

Three years ago, the Supreme Court refused to get involved in the dispute between Paulson and the city.

Kennedy granted the stay to the city and the cross' supporters without comment pending a further order from him or the entire court. It was unclear Monday how long the stay would remain in effect or whether the Supreme Court would ultimately deny the appeals by the city and the cross' supporters.

Paulson's attorney, James E. McElroy, played down the significance of Kennedy's order.

"What he really did today was nothing," McElroy said. "It probably means, 'We just need a little time to look at it.'"

In its most recent case involving religious symbols, the Supreme Court ruled last year in a pair of 5-4 decisions that overtly religious displays are unconstitutional, but historic ones are allowed.

The court, then led by Chief Justice William H. Rehnquist, struck down framed copies of the Ten Commandments in two Kentucky courthouses while upholding a 6-foot granite monument on the grounds of the Texas Capitol.

The only religious case to come before the court under Chief Justice John Roberts involved the use of hallucinogenic tea by a small branch of a South American religious sect. The court unanimously ruled that the government cannot hinder religious practices without proof of a "compelling" need to do so.

The Mount Soledad cross was dedicated in 1954 as a memorial to Korean War veterans, and a private association maintains a veterans memorial surrounding it.

The mayor has argued that the cross is an integral part of the memorial and deserves the same exemptions to government-maintained religious symbols as those granted to other war monuments.

Last year, San Diego voters overwhelmingly approved a ballot proposition to transfer the land beneath the cross to the federal government. The measure was designed to absolve the city of responsibility for the cross under the existing lawsuit. The city is currently appealing a California Superior Court ruling that found the proposition to be unconstitutional.

"It doesn't mean the Supreme Court has decided to take the case, but it means there is time for the other courts to hear the arguments," said City Attorney Michael Aguirre.