Despite S.D. Ruling, Court OKs S.F. Cross

In a sharp departure from a ruling in San Diego, a federal judge on Thursday upheld the constitutionality of a 103-foot cross on city land, finding it does not represent official endorsement of Christianity.

The decision marked the first time in some 10 cases--including the one in San Diego--that a federal court has approved a government-sponsored display of the cross, attorneys said.

U.S. District Judge John P. Vukasin Jr. found that the towering, 58-year-old cross--the largest free-standing cross in the nation--has become a secular local landmark and does not violate the separation of church and state.

Vukasin said he found a legal challenge to the cross ironic in San Francisco, a city that seems to tolerate “almost any kind of conduct.”

The concrete and steel structure is situated on a peak in Mt. Davidson Park and can be seen for miles. The cross, the site of Easter sunrise services for years, was dedicated in 1934 when President Franklin D. Roosevelt pressed a telegraph key at the White House to illuminate the structure.

Thomas Steel, an attorney for a group of religious leaders and others who brought suit contesting municipal ownership and maintenance of the cross, said Vukasin’s ruling will be appealed to the U.S. 9th Circuit Court of Appeals.

“This is the first court in history to uphold the display of a solitary cross on government land,” said Steel. “We expect the appeal court to follow other rulings and hold the government cannot display a symbol of one particular religion on government land--particularly one so powerful as the symbol of Christianity.”

Deputy City Atty. Arthur Greenberg said he was confident Vukasin’s ruling would be upheld on appeal. “The decision is entirely consistent with guidance provided by the Supreme Court that lower courts are to review the full context of a structure in deciding such cases,” Greenberg said.

The San Francisco ruling is the opposite of a Dec. 3 ruling in San Diego that ordered the removal of the prominent crosses atop two public parks, Mt. Soledad in La Jolla and Mt. Helix near La Mesa.

Judge Gordon Thompson Jr. in San Diego ruled that the two crosses must come down because they violate the state constitution’s ban on mixing church and state. His ruling was the first in California on the emotionally charged issue of the cross as religious symbol on public property.

The San Francisco ruling has no immediate impact on the San Diego decision. A federal trial judge’s decision is not binding precedent on any other federal trial judge.

But the two cases will present the federal appeals court that serves California, the U.S. 9th Circuit Court of Appeals, with a choice.

Howard Kreisner, an atheist who brought the San Diego suit, said he feels confident the 9th Circuit court will see it his way.

“I would simply say that not every U.S. District Court judge does what he is expected to do in cases like this,” Kreisner said Thursday. “Some judges choose expedience and popularity over enforcement of the applicable law. It’s very sad when it happens. It undermines the judicial process. It’s weak thinking.”

In the San Francisco ruling, Judge Vukasin upheld the city’s claim that the cross has become an important part of the city’s secular history and tradition and would not be reasonably viewed as official approval of a religion.

The judge, explaining his decision from the bench, cited a 1989 ruling by the U.S. Supreme Court approving the display of a Menorah, a symbol of Judaism, along with a Christmas tree at a government building. In that case, the high court said such displays must be judged in full context and appeared to be ready to give lower courts more leeway to uphold their validity.

Vukasin noted that the San Francisco cross was situated in a relatively secluded, wooded environment, far away from City Hall. Maintaining the cross in such a location could not be seen as approval of one religion over another, he said.

In challenging the city’s support of the cross, the plaintiffs in the suit had relied heavily on the fact that in nine previous cases, including the San Diego case, federal courts around the country had struck down various government-supported displays of the cross without other religious symbols.

Hager reported from San Francisco and Abrahamson from San Diego.