Most news reports have stated that this 23 year long legal Odyssey now goes back to the federal district court, at which point if it issues an injunction to remove the existing cross, a new appeal could be filed. And the decision on this appeal could once again be submitted for review to the Supreme Court.
After a careful reading of the briefs and decisions of the district court and the court of appeals, which now stands after yesterday's Supreme Court's denial of certiorari, the mandate to change the existing monument has the force of law. Given the extensive delay in making this determination, it was obviously a seriously considered one, with the justices having a full understanding of its implications.
Given that the 9th did not explicitly overturn the taking of the property by the federal government, the obligation to redesign the memorial is incumbent on the executive branch, ultimately the President. The 9th court order for "Further proceedings consistent with this opinion" can only mean action on redesign and replacement of this memorial.
The house Republican caucus ramrodded the condemnation of the land under the memorial in order to place it under the Department of Defense. Not a single senator, including Democrats, had the courage to vote to prevent this crass tactic from succeeding. It is now Federal property, which makes the kind of compromise that had been agreed to by all parties in 2004, much more difficult to achieve.
The conservatives on the Supreme Court, based on the length of time in deciding to let the 9th court of appeals determination that it was unconstitutional stand, obviously wanted to endorse this symbolic proclamation that the United States of America is a Christian country. It would have taken the votes of four Justices, meaning it was at least 6 to 3 NOT to accept this case. Justice Alito's description of the tentative nature of the court's confirmation of the unconstitutionality of the single dominant cross, while an unofficial individual statement, most likely reflects the underlying view of this minority of the court. (last two pages of this report)
His lone unofficial statement provides plausible denial that this action by the Supreme court confirms that the existing configuration of the memorial is unconstitutional. While this may be simplified as another example of left vs. right, conservatives v. liberals, it is not that clear
The Obama administration brought the challenge against the 9th court of appeals decision, writing " the government would have to "tear down" the cross if the Supreme Court rejected its petition. This was the same phrase used by those who have scuttled reasonable compromise over two decades, and is a shameful mischaracterization of the actual moderate appeals decision that specifically stated that a cross could be part of a modified monument.
Meanwhile there is evidence that the sentiment of San Diego citizens is changing, based on letters to the editor of the single daily paper that are published in proportion to those expressing a common point of view. This means that a city that had voted to do everything not to follow previous court rulings to remove the cross, now favor creating a new monument by roughly 8 to 1,
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Link to Amicus Brief of 34 members of congress that requested the Supreme Court grant certiorari. The content of this brief makes it clear that the case is not as Alto said in "an interlocutory position" meaning not at an end. The central issue address in this Amicus Brief was the constitutionality of the existing cross, which was argued extensively on the merits, something Alito said was not considered in not granting certiorari . placing him in disagreement with 34 legislators who were represented by this brief.
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From ACLU-Jewish War Veterans Brief to 9th Circuit:
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief:
(a) A declaratory judgment that the taking of the Mt. Soledad Latin cross and
its continued display on federally owned land violates the Establishment Clause of the First Amendment of the United States Constitution;
(b) The entry of a preliminary and permanent injunctive relief enjoining the continued display of the Mt. Soledad Latin cross on federally owned land
(c) Encourage and permit the Latin cross to be moved, at the expense of individual citizens who believe that the Latin cross should be preserved, to an appropriate non-governmental site;
(d) An award to Plaintiffs of their costs, expenses, and attorneys’ fees; and
(e) Such further and other relief as this Court deems just and proper.
DATED: August 24, 2006
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Here is the final part of the 9th decision, now affirmed by the Supreme Court.
[23] Accordingly, after examining the
entirety of the Mount Soledad Memorial in context-having considered
it's history, it's religious and non-religious uses, its sectarian
and secular features, the history of war memorials and dominance of
the Cross—we conclude that the Memorial presently configured and as
a whole , primarily conveys a message of government endorsement of
religion that violates the Establishment Clause. This result does
not mean that the Memorial could not be modified to pass
constitutional muster, nor does it mean that no cross can be part of
this veterans' memorial. We take no position on those issues.
We reverse the grant of summary
judgment to the government and remand for entry of summary judgment
in favor of the Jewish War Veterans and for further proceedings
consistent with this opinion.
REVERSED AND REMANDED
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