Suit Filed Over Cross in S.F. Park : Law: The issue of whether it is a landmark or a violation of the separation of church and state arises as courts struggle to define the government’s relationship to religion.

Albert C. Walker is an avid hiker but he carefully avoids the eucalyptus-lined trails of nearby Mt. Davidson Park. And while he can admire the view of the park from his dining room, he prefers to sit with his back to the window.

The reason: a 103-foot concrete-and-steel cross that towers over the city-owned, 31-acre park atop the highest peak in San Francisco, visible for miles and believed to be the largest of its kind in the nation.

The cross, the site of Easter sunrise services here for decades, was dedicated in 1934 when President Franklin D. Roosevelt pressed a golden telegraph key in the White House to illuminate the massive structure before a crowd of 50,000.

To Walker, however, the cross is not a treasured landmark but a disturbing violation of the constitutional prohibition against governmental endorsement of religion.

“I just don’t like the idea of a cross on public land,” says the president of the local chapter of Americans United for Separation of Church and State. “The city should not be sponsoring the highest symbol of Christianity.”

Walker and seven others--including a Unitarian minister, a rabbi, a Baptist minister and a Buddhist priest--have brought a federal lawsuit challenging the display of the cross on municipal property.

In a city named after a saint, the case presents a classic legal test of one of the key provisions of the Bill of Rights in its bicentennial year. Under the First Amendment, “Congress shall make no law respecting an establishment of religion”--a prohibition that applies now to federal, state and local government.

The dispute emerges as the courts continue to wrestle over the permissible limits of governmental accommodation of religion--and as the U.S. Supreme Court considers a new legal test for settling such controversies.

City officials vigorously defend the cross, arguing that the structure has become a cultural and historical landmark--and thus serves a permissible non-religious purpose.

“This is an important case,” says Deputy City Atty. Arthur Greenberg. “It will determine whether the city, through its ownership of the cross, is entitled to protect an integral part of San Francisco history.”

City attorneys believe the federal high court may be moving toward a new standard that could give government greater latitude in accommodating religion--and perhaps ultimately strengthen their case.

For two decades, the justices have used a three-part test to decide such disputes: Governmental involvement with religion is permissible only if it serves a secular purpose, does not advance or inhibit religion, and does not represent “excessive entanglement” with religion.

But in a 1989 ruling, four of the nine justices voiced support for a new test: Government involvement would be permissible as long as it does not “coerce” support or participation in religion or in fact “establish” a state religion.

The high court will consider the issue again in another case in its term beginning in October. San Francisco’s lawyers say that what was only a minority view on the court in 1989 may become a majority view with the recent addition of Justice David H. Souter and the prospective addition of current court nominee Clarence Thomas. The Bush Administration is urging the court to abandon the old legal standard.

Martin Kaffman, an attorney and vice president of the local Americans United for Separation of Church and State, acknowledges concern over the prospect of a high court shift. But he believes the challengers in this case will eventually prevail under either legal standard.

“No matter which test is ultimately adopted, we feel the Mt. Davidson cross is a very clear violation of the First Amendment,” said Kaffman. “And even in the unlikely event the federal court ruled there was no such violation, there is clearly a violation of the California Constitution, which is even stricter (on separation of church and state).”

San Franciscans have been holding Easter sunrise services on Mt. Davidson since 1923, when a 40-foot wooden cross was erected and Boy Scouts guided 5,000 worshipers from the base of the hill to its summit.

Later the city purchased the land and established a park on Mt. Davidson. A private fund-raising drive was launched to build a new permanent cross but the campaign fell short, and, according to an account by UC Davis historian Marie Bolton, the city decided to pay for the cross itself. City attorneys assured park commissioners there was no conflict with the Constitution.

At the final dedication in the spring of 1934, a cornerstone was laid with cement mixed with water shipped from the Jordan River. A copper box containing two Bibles and other items was sealed at the base of the cross. Roosevelt’s role in lighting the cross a week before Easter provided the crowning touch to the commemoration.

In more recent times, however, controversy has arisen over the city’s role in maintaining the cross. Critics of the practice have proposed that the city divest itself of the property, but officials refused. Then came the lawsuit, filed for Walker and others by Thomas Steel of San Francisco and other attorneys for Americans United for Separation of Church and State, the American Jewish Congress and the American Civil Liberties Union of Northern California.

“It’s a wonderful park but this is a humongous cross--it’s sort of overwhelming,” said Richard Spear, 39, a nearby resident who joined in the suit. “It’s wrong for the city to maintain a religious symbol, especially one that’s so big and prominent on the landscape.”

The suit, currently awaiting a pretrial hearing before U.S. District Judge John P. Vukasin Jr., cites nine federal court rulings in which a variety of government-sponsored displays of a cross have been struck down as unconstitutional.

Not only does the display on Mt. Davidson violate the federal Constitution, it also clashes with provisions of the California Constitution barring government “establishment of religion” or “granting anything to or in aid of” any religious creed, the suit says.

The suit cites, among others, a 1979 ruling by the state Supreme Court invalidating the 30-year practice of illuminating the lights of Los Angeles City Hall in the form of a cross at Christmas and Easter.

The city of San Francisco, in briefs filed by Greenberg and Deputy City Atty. Mara E. Rosales, replied that municipal ownership of the Mt. Davidson cross presents a far different situation. The structure’s role in the secular history and tradition of San Francisco preserves it from legal attack, they argue. Reasonable people, the city contends, do not see the Mt. Davidson cross as government endorsement of Christianity.

The city’s primary purpose in acquiring Mt. Davidson was to preserve open space, and its aim in erecting the cross was to commemorate the traditional gatherings over the years at Easter, city attorneys say. The cross is a public monument and work of art, not an official approval of a religious sect, they say.

The cross here, city lawyers contend, is different from the unconstitutional Los Angeles City Hall cross. Instead, they say, the San Francisco cross is legally akin to the display of a menorah at Los Angeles City Hall during Hanukkah--a display that was approved in 1989 by a state appeals court on grounds that the menorah’s historical, cultural and artistic value outweighed its religious significance.

To back up their legal claims, San Francisco officials hired a marketing research firm to conduct a survey of city residents on their views of the cross. The results, says the city, refute the claim that the cross is widely seen as an endorsement of Christianity.

Of 550 people queried, most were aware of the cross and some respondents even added that they had seen it in a Clint Eastwood “Dirty Harry” movie. But 37% said they were not aware of its existence, even though it is visible for miles.

Only 27% of those polled were aware that the cross is city-owned, the survey found. And of that group, 25% were “positive,” 10% “neutral” and only 7% “negative” in their comments on the issue, city officials said.