2 Landmark S.D. Crosses Must Go, U.S. Judge Rules : Law: Religious symbols atop Mt. Soledad and Mt. Helix are found in violation of the state Constitution.

In a landmark decision, a San Diego federal judge ruled Tuesday that the prominent crosses that for years have topped two public parks, Mt. Soledad in La Jolla and Mt. Helix near La Mesa, must come down because they violate the state Constitution’s ban on mixing church and state.

In the first federal court decision in California on the emotionally charged issue of the cross as religious symbol on public property, U.S. District Judge Gordon Thompson Jr. also ordered the city of La Mesa to remove depictions of the Mt. Helix cross from its official insignia. The logo appears on city stationery, police cars and shoulder patches worn by city workers.

Thompson gave officials three months to comply, or to appeal. He said the state Constitution forbids even “the appearance of religious partiality,” and the Mt. Soledad and Mt. Helix crosses loom large as huge symbols--figuratively and literally--of Christianity.

The decision marked the latest entry in a string of decisions issued in recent years across the nation by judges wrestling with the legality of religious symbols on public property, the recital of prayers at public meetings and public aid to parochial schools.

The ruling also underscores the increasing vitality of a legal doctrine called “independent state grounds,” which allows judges to invoke a state’s constitution to grant its citizens greater rights than required by the U.S. Constitution.

The California Constitution affords even greater protection of religious freedoms than the U.S. Constitution offers.

The loose coalition of civil libertarians and atheists who pursued the San Diego case said Tuesday that the decision was the sort of holiday cheer they could support unhesitatingly.

“This is the right result, both constitutionally and in terms of what we should be doing as a diverse society,” said Betty Wheeler, legal director of the American Civil Liberties Union of San Diego and Imperial Counties, which challenged the Mt. Helix cross and the La Mesa insignia.

“One of our core values as Americans is that we don’t exclude people from feeling welcome, as a part of our society, based on their religion,” Wheeler said. “We protect religious liberty by keeping the government out of religion.”

Howard Kreisner, who filed suit with another avowed atheist, Philip K. Paulson, against the Mt. Soledad cross, called the decision an “example of people without wealth or influence ‘fighting City Hall.’ ”

It was uncertain Tuesday whether the city of San Diego, the county of San Diego or the city of La Mesa, the three governmental bodies sued in the case, would appeal to the U.S. 9th Circuit Court of Appeals, the federal appellate court that serves nine Western states, including California.

Lawyers said that no governmental body has ever won a federal court appeal of an adverse decision in a cross case.

San Diego County Supervisor George Bailey said he will suggest a way around the decision at next week’s board meeting. The Mt. Helix cross is in Bailey’s district, and he said he would propose a transfer of the few square yards in the park on which the Mt. Helix cross sits to a private, nonprofit corporation.

“This is absolutely ridiculous,” Bailey said of the ruling. “It’s awful nit-picky.

“I don’t care what your religion is, you can use (Mt. Helix) park and preach any gospel you want. I wouldn’t object if it was the Star of David or a picture of Allah, or what. As far as I’m concerned, (the cross) speaks to the good parts of life.”

The San Diego case began May 31, 1989, when Kreisner and Paulson sued the city of San Diego over the Mt. Soledad cross. Early the next year, on Jan. 30, 1990, the ACLU joined in, challenging the county on the Mt. Helix cross and La Mesa on the insignia.

Last July 31, a three-judge 9th Circuit panel ruled that the state Constitution did not allow San Bernardino County to own a Yucca Valley park that contains 36 fixed statues and tableaus depicting the life of Jesus Christ as told in the New Testament.

The county’s lawyer in that case, Sacramento attorney David Llewellyn, said Tuesday that he had just last week filed an appeal of that ruling to the U.S. Supreme Court. The high court has never ruled directly on the issue of crosses on public lands.

Thompson said Tuesday that he was “duty bound” to follow last July’s decision by the 9th Circuit court, which relied on the guarantee in the California Constitution to free exercise of religion “without discrimination or preference.”

That so-called “no preference” clause forbids a municipal body from appearing to favor one religion over another, the 9th Circuit said. Federal law lacks such a clause.

The Mt. Helix cross, built in the mid-1920s and located in a 4-acre park owned by the county since 1929, is 36 feet tall, illuminated nightly and easily visible around La Mesa. It serves as the site for an annual Easter sunrise service.

The county claimed that the cross is a religiously neutral historical monument that also helps pilots navigate. Thompson said that argument put the cart before the horse.

The significance of the Mt. Helix cross is that, for more than 60 years, it has served as a “powerful religious symbol,” especially at night, when it becomes a beacon visible for miles, the judge said.

Even the deed conveying the park to the county is brushed with religion, Thompson said. The deed allows the county to own the park as long as there is an Easter sunrise service “suitable for commemorating the Resurrection of the Lord Jesus Christ, as taught by the Christian churches of the world.”

The city of La Mesa contended that its insignia--printed on official stationery and worn on the shoulder patches of city police--portrays the Mt. Helix cross as a geographic and historical landmark, not as a religious symbol. The logo depicts several hills below two clouds, with the cross at the center, atop the highest hill and below the clouds.

Thompson said again that the cross is a religious symbol that “communicates a message of government preference for religion in general, and for certain sects in particular.”

Thompson found the Mt. Soledad cross unconstitutional for the same reasons he said the Mt. Helix cross runs afoul of the law.

The 43-foot-high concrete structure also is lit at night and is visible for many miles from Interstate 5 near La Jolla. The cross rests in the midst of a 170-acre park that has belonged to the city of San Diego since the 19th Century.

The Mt. Soledad cross was dedicated in an Easter Sunday ceremony in 1954. Easter services are held there each year, too. In road maps, travel guides and even the Yellow Pages, the structure is referred to as the “Soledad Easter Cross,” Thompson said.

The cross also has secular purposes, serving as a monument for surveyors and earthquake monitoring. The city of San Diego contended that its primary role is as a war memorial.

Even if that were true, Thompson said, its primary effect would be to give the impression that only Christian soldiers are worthy of honor. And, he said, there is no record of any city-sanctioned memorial service at the site between Easter Sunday, 1954, and the day the suit was filed in 1989, though veterans’ ceremonies have been held since the suit was brought.

“For 35 consecutive years, they had Easter,” said Kreisner, a Vietnam War veteran. “But they missed 35 consecutive Veterans Days and 35 consecutive Memorial Days. You’d think they could have done something in 35 years--one gesture.”