San Diegans for the Mt. Soledad National War Memorial v. Paulson
Justice Kennedy, acting as Circuit Justice, granted San Diego's request to pause a lower court order requiring removal of a cross from the Mt. Soledad veterans' memorial while the city's appeal proceeds in the Ninth Circuit.
The stay reflects a new federal law designating the site a national veterans' memorial and pending state litigation over transferring it to federal ownership, both of which could affect whether the cross must come down at all.
“This is always a difficult and speculative inquiry.”
Kennedy describes how hard it is to predict whether the Supreme Court would eventually review the case.
How it got here: A federal district court ordered San Diego to remove the cross; the Ninth Circuit denied a stay pending its expedited appeal; the city and a proposed intervenor asked the Supreme Court's Circuit Justice for a stay.
The Case in Depth
What happened
San Diego has long faced litigation over a large Latin cross standing at the Mt. Soledad veterans' memorial on city property. Courts previously found the cross's permanent presence violated the California Constitution. Congress later designated the site a national memorial and authorized federal acquisition of it, and San Diego voters approved donating the memorial to the United States, though a state court invalidated that transfer.
The question before the Court
Should a court order forcing San Diego to remove a large cross from a veterans' memorial be paused while the city's appeal moves forward?
Why it matters
The cross remains standing at the Mt. Soledad veterans' memorial for now, sparing the city from having to alter or remove it before the legal fight over its fate is resolved. The order also signals that a new congressional designation and parallel state litigation could ultimately change the outcome, affecting how the dispute over religious displays on public veterans' memorials is decided.
What changes now
The stay keeps the cross in place while the Ninth Circuit considers San Diego's appeal on an expedited schedule, with argument set for October 2006. A separate state appellate proceeding over the voter-approved transfer of the memorial to federal ownership also continues and could affect or moot the underlying dispute. This is a temporary emergency order, not a final ruling on the merits, and either party may ask the Court to reconsider if circumstances change.
What this does not decide
This order does not decide whether the cross's presence on the memorial is lawful under the California Constitution or federal law. It only pauses enforcement of the removal order while the city's appeal and a related state-court transfer dispute proceed.
How the Court got there
The legal reasoning, step by step
- Kennedy applied the standard test a Circuit Justice uses when deciding whether to stay a lower court order pending an appeal: predicting whether four Justices would vote to hear the case if the appeals court affirms, predicting whether the Court would then overturn that ruling, and weighing the practical harms and benefits of pausing the order, known as the 'stay equities.'
- He found the harm from removing the cross while the appeal proceeded outweighed the modest harm of a brief delay, since the appeals court had already agreed to hear the case quickly.
- He identified two unusual factors strengthening the case for a stay: a new federal law calling the site a national veterans' memorial and authorizing its transfer to the United States, and a related, still-pending state lawsuit over a voter-approved plan to donate the memorial to the federal government.
- Because the federal law was enacted after earlier rulings in the case and its legal effect had not yet been considered, and because a pending state appeal might make the transfer possible and moot the removal order, Kennedy concluded these developments made it substantially more likely the Supreme Court would eventually agree to review the dispute.
- Balancing these considerations, he concluded that pausing the removal order until the Ninth Circuit finished its review was warranted, given the unresolved effect of the new federal law and the ongoing state court proceedings.