In eight weeks, we have seen a strategy employed which has, thus far, completely defeated the ACLUs 15-year reign to remove the cross at the Mt. Soledad War Memorial. Since the early 1990s, the ACLU has outflanked local government officials and concerned citizens by receiving court order after court order demanding the removal of the Mt. Soledad cross. That all began to change just eight weeks ago. When we got word that the imminent removal of the cross and the imposition of a $5000/day fine if the City of San Diego did not take the cross off the war memorial, we employed a legal and legislative action that has overwhelmingly succeeded.
The first order of business was to make sure that the City of San Diego would actually appeal the adverse decisions of the California courts demanding the removal of the cross. We mounted a successful campaign to encourage the city to appeal. By a 5-3 vote, the City Council voted to appeal the case. This was just the beginning of our efforts in this important case. Once the appeal was filed, the ACLJ, representing Congressman Duncan Hunter as well as other members of the United States House, filed briefs with the 9th Circuit Court of Appeals. At the same time, we worked on legislation to transfer the war memorial to the federal government to avoid this historic monument being destroyed. Not surprisingly, the U.S. Court of Appeals for the 9th Circuit held that the display was unconstitutional and they refused to issue a stay. This left only one alternative for us: appeal to the Supreme Court of the United States and, specifically, to Justice Kennedy. We simultaneously pushed forward aggressively to make sure the legislation transferring the Mt. Soledad cross would be put in place in time if we were to succeed at the Supreme Court. After receiving our briefs and the briefs of others, Justice Kennedy issued an initial stay as the case was considered by the Court. While we were pleased with this result, the ACLU and other organizations believed this was just going to be a temporary stay and that, ultimately, Justice Kennedy would order the removal of the cross from Mt. Soledad. Four days after the initial stay was issued, however, Justice Kennedy issued his final order granting the application for a stay and specifically noting important factors which led to his conclusion.
The Supreme Court Order by Justice Kennedy was significant because he noted that in order for a stay to be granted, at least four Justices would have to agree to hear the case and a fifth Justice would be necessary for the case to be overturned. Justice Kennedy found those factors to be present here. We pointed out in our brief that the intervening federal legislation protecting the Mt. Soledad War Memorial could not be ignored by the courts, but this is precisely what the 9th Circuit Court of Appeals had done. Again, Justice Kennedy agreed with our analysis. Once the stay was put in place, the next order of business turned to the legislative determination.
Colby May and Drew Ryun in our Office of Government Affairs have been working with members of Congress, both in the House and Senate, to make sure legislation would pass to protect the Mt. Soledad War Memorial. Yesterday, the United States Senate approved a plan to transfer the land beneath the Mt. Soledad Cross to the federal government, which will bolster supporters who have been fending off efforts to remove the monument now for nearly two decades. The Senate voted by unanimous consent. This means that the legislation will now be on President Bushs desk in the next few days to execute. Of course, the ACLU lawyers are still maintaining that this bill is unconstitutional and are already threatening suit. Nevertheless, the City of San Diego and the Mt. Soledad Cross are in better shape legally now than they have been in the last 20 years. As our client, Congressman Duncan Hunter, said, Todays vote represents a significant step forward. It is a step forward that would not have taken place except for the efforts of the American people, both politically, through the media, and ultimately through the halls of Congress and the Supreme Court of the United States. We are grateful that the case has reached this new season, and we are optimistic in our ability to continue to defend this time-honored monument.