Rees dashed off these notes to me following yesterday's decision NOT to take up the Mt. Soledad cross case by the US Supreme Court:
In this opinion on denial, Justice Alito makes clear that the denial is not based upon the merits. Rather, it is stressed that review is denied because the 9th Circuit decision remanded the case to the U.S. District to determine a proper remedy. Thus, says Alito, he joins the denial only because it is premature in that it is unknown what remedy the lower court will fashion. He notes that the 9th Circuit decision states it is not holding that the Cross, or a Cross, could not be maintained if there were changes in the context. He notes that it is unknown what action the government may take re; the context, or
other action. He makes clear that the decision is not, therefore, 'on the merits," and stresses that the government may re-petition after the lower court's decision is made.
It is significant that the Supreme Court held in the Mojave Cross Case that a transfer of the site to private hands cured the constitutional problem. Therefore, that same approach, i.e., transfer of the Mt. Soledad Memorial to private hands, e.g., the Mt Soledad Memorial Association, might we applicable.
Here's part of Justice Alito's order:
Because no final judgment has been rendered and it remains unclearprecisely what action the Federal Government will berequired to take, I agree with the Court’s decision to denythe petitions for certiorari. See, e.g., Locomotive Firemen v. Bangor & Aroostook R. Co., 389 U. S. 327, 328 (1967) (per curiam) (denying petition for certiorari because “the Court of Appeals [had] remanded the case” and thus it was“not yet ripe for review by this Court”); see also E. Gressman, K. Geller, S. Shapiro, T. Bishop, & E. Hartnett,Supreme Court Practice 280 (9th ed. 2007) (hereinaf- ter Stern & Gressman). Our denial, of course, does not amount to a ruling on the merits, and the Federal Government is free to raise the same issue in a later petition following entry of a final judgment.
In short, the fight to save the Mt. Soledad Cross is NOT over in the courts. The fight goes on there, and should go on in the Congress and the Executive Branch.
For God and Country Forever; Surrender To The ACLU--Never!