Seeking to preserve the prominent crosses that for years have topped two public parks, the San Diego County Board of Supervisors and San Diego City Council on Tuesday decided to appeal a federal court ruling that ordered their removal because the crosses violated the state Constitution's ban on mixing church and state.
In separate actions, the council and the supervisors also took the first step toward possibly transferring title to the crosses atop Mt. Soledad and Mt. Helix to private, nonprofit corporations.
The supervisors agreed in principle to turn over the Mt. Helix cross to a nonprofit group, while the council instructed city attorneys to begin pursuing a similar course with the Mt. Soledad cross--an action that city officials said might require voters' approval.
Betty Wheeler, legal director of the American Civil Liberties Union of San Diego and Imperial counties, expressed doubt that either appeal would succeed, and took particularly strong exception to the county's exploration of the title-transfer option.
"It would be hard to think of a more precise example of a subterfuge" aimed at circumventing the court's decision, Wheeler said.
Tuesday's actions marked the latest legal maneuvering over the emotionally charged issue of whether the cross as a religious symbol may appear on public property without violating the principle of separation of church and state.
Last week, U.S. District Judge Gordon Thompson Jr., saying that the state Constitution forbids even "the appearance of religious partiality," ordered that the crosses be removed. He also directed the city of La Mesa to remove depictions of the Mt. Helix cross from its official insignia.
Though lawyers said that no government has ever won a federal appeal of an adverse decision in a cross case, both city and county officials stressed that they felt compelled to appeal Thompson's ruling and pursue any other steps necessary to preserve crosses that they characterized more as "historical" landmarks than religious symbols.
"You're talking about a symbol of San Diego, and we're going to keep that symbol in San Diego--we're going to keep it on Mt. Soledad," Mayor Maureen O'Connor said emphatically in announcing the council's unanimous decision to appeal.
Similarly, Supervisor George Bailey, whose district includes Mt. Helix, said that the East County cross "deserves preservation . . . as East County's most prominent historical landmark."
The city contends that the Mt. Soledad cross, dedicated in an Easter Sunday ceremony in 1954, is primarily a war memorial. In his ruling, however, Thompson noted that there is no record of any city-sanctioned memorial ceremony there between 1954 and 1989, when two avowed atheists filed their lawsuit seeking removal of the cross.
"Mt. Soledad is a memorial to the people who have fought in our wars, and it should stay," O'Connor said of the cross, where Easter services are held annually.
The ACLU's Wheeler, however, dismissed that argument as being typical of governments' "trivialization of the content of religious symbols" when faced with legal challenges to those symbols. By trying to have it both ways, she added, governments sometimes simply exacerbate their problems.
"If the mayor is saying that the cross is not a religious symbol, I think many deeply religious people would disagree with that," said Wheeler, whose organization challenged the Mt. Helix cross and La Mesa insignias.
County officials, meanwhile, describe the Mt. Helix cross as a religiously neutral historical monument that also helps pilots to navigate, particularly at night, when the 36-foot tall, illuminated cross is visible for miles.
Judge Thompson, though, characterized the Mt. Helix cross as a "powerful religious symbol," pointing out that the 1929 deed that conveyed the park to the county specified that there should be annual sunrise Easter services "suitable for commemorating the resurrection of the Lord Jesus Christ, as taught by the Christian churches of the world."
Under Tuesday's board action, the supervisors also tentatively agreed to transfer the cross' title to a private, nonprofit corporation. Officials of the Grossmont-Mt. Helix Improvement Assn. told the board that they would be willing to assume responsibility for maintaining the cross and the land at its base.
The City Council instructed City Atty. John Witt's office to begin exploring a similar option, which O'Connor said might require approval by a two-thirds public vote. The city also plans to ask Thompson to stay his order that the crosses be removed within three months pending the appeal.
"I'm not at all afraid if the attorneys rule we need a two-thirds vote," O'Connor said. "I have no doubt that this city will not only get the two-thirds vote--they'll probably get 95% of the voters supporting that."
County attorneys, however, have already determined that a public vote would not be necessary to transfer the Mt. Helix cross to a nonprofit group, according to Bob Lerner, a spokesman for Chief Administrative Officer Norman Hickey.
Despite legal precedents showing that appeals similar to San Diego's have consistently failed, O'Connor confidently predicted that the city would prevail.
"You're talking to Mayor Maureen O'Connor, who is an optimist," the mayor said. "We figure out a way to solve our problems in this community. This is a challenge and we're going to solve it and we're going to maintain that cross on Mt. Soledad."