Presidio Park, Mt. Soledad : Legal Assault on Crosses Is Vowed

The San Diego chapter of American Atheists says it will sue the city over a recent city attorney’s opinion that crosses on Mt. Soledad, in La Jolla, and in Presidio Park, near Old Town, do not violate the Constitution’s separation of church and state.

“A legal opinion is just that . . . the city attorney’s legal opinion,” said Stephen Thorne, director of the local chapter of American Atheists. “The key thing is the city of San Diego doesn’t have an exemption from the Constitution.”

Thorne said his group, which is already fighting the city in federal court over a Nativity display at Balboa Park, intends to file another lawsuit in federal court over City Atty. John Witt’s opinion on the crosses, issued a week ago.

That opinion, said the city does not violate federal or state constitutions because “the purpose of each (cross) is secular, the primary effect neither advances nor inhibits religion and neither cross fosters an excessive entanglement by government with religion.” Both crosses are on public land and maintained as part of a park.

The city attorney’s office maintained that the Mt. Soledad cross has long been a memorial to American soldiers killed in World War I, II and the Korean War, an important legal point according to the opinion, which was written by Deputy City Atty. Mary Kay Jackson.

In previous federal court cases, crosses on public land were designated as war memorials only after “complaints were received and a problem became apparent.” In those instances, the courts ordered the crosses removed.

The cross atop 822-foot-high Mt. Soledad, which provides spectacular views of the city and beyond, was erected in 1913 by private citizens. It was destroyed by vandals 10 years later but rebuilt by citizens. In 1952, a windstorm toppled the cross. The latest cross was put up by citizens in 1954, when it was dedicated as a war memorial. Mt. Soledad was dedicated in 1916 as a public park and remains a favorite tourist attraction.

Cross at Presidio Park

The city attorney’s office maintains that the Presidio Park cross commemorates “the historical beginnings of the city of San Diego.”

The original cross at Presidio Park was dedicated by Father Junipero Serra as part of the founding of the Royal Presidio in 1769, the opinion noted. The existing cross was built in 1913 using brick from the original presidio. The land was given to the city by George Marston in 1930, when it became a public park.

Even though the cross was first erected by a Catholic priest, the city attorney says the purpose of the cross was to honor the founding of the city.

“The original settlement where the cross was first erected, as well as the city itself, was founded by religious people,” the opinion says. “One cannot memorialize such people without including the artifacts they themselves utilized. The cross in Presidio (Park) was in place long before the city dedicated the property as parkland, or even acquired the land itself. The primary effect here is to commemorate the beginnings of San Diego, not to promote or inhibit any religion.”

Without Precedent

The opinion notes, however, that there have been no U. S. Supreme Court cases dealing specifically with crosses on public lands. There are few state court cases anywhere in the country involving the issue of crosses, and none from the 4th District Court of Appeal, which provides guidelines for state courts in San Diego. The California Supreme Court, in a 1978 decision, ruled that a cross attached to Los Angeles City Hall, which was lighted at Easter and Christmas, was a violation of the state constitution.

The issue of the crosses on Mt. Soledad and in Presidio Park was first raised by the American Atheist chapter in San Diego when the group complained to the city’s Park and Recreation Department, which then asked for the city attorney’s opinion.

“We think the city attorney was trying to find an excuse to keep these (crosses) there,” said Thorne, who said the lawsuit should be filed within a month by the Society of Separationists, the legal arm of American Atheists.

“Individuals have freedom of religion, government does not,” said Thorne, who maintains that federal courts have consistently ruled against local governments in similar cases. “No cross has withstood this kind of action.”

Thorne said the very existence of the crosses promotes Christianity.