Mt. Soledad Cross to Stand During Appeal : Law: Federal court rules that La Jolla landmark should not be destroyed as legal battle goes on.

The federal appeals court weighing the fate of the controversial Mt. Soledad cross has ruled that the La Jolla landmark should not be destroyed while the court case over its legality drags on.

In a ruling made public Friday, the U.S. 9th Circuit Court of Appeals ordered that the huge cross could remain atop Mt. Soledad while the appeal is waged.

San Diego federal Judge Gordon Thompson Jr. ruled last December that the cross, and a similar cross on Mt. Helix near La Mesa, violate the state constitutional ban on mixing church and state. Both crosses have stood for decades in public parks.

The case, which arose after atheist activists and civil libertarians challenged both crosses, has been appealed to the San Francisco-based 9th Circuit Court, which has set a May 5 hearing on it.

The order from the 9th Circuit Court has little immediate practical impact, since neither cross was in danger of being destroyed pending appeals. But it did tantalize San Diego city officials with the prospect of a legal victory.

Mayor Maureen O’Connor actually did a little dance while talking Friday about the ruling, waving her hands, shaking her hips and saying she was confident the city would win on appeal.

“We’ve said all along that this is a historical site,” O’Connor said. “It is a war memorial. It is part of San Diego’s history.

“And I think the judges of the 9th Circuit Court are finally realizing what the people of San Diego have been saying all along. So I’m confident.”

One of the atheist activists who brought the case, Howard Kreisner, sharply disputed that claim.

“When the dust clears, the decision in this case will be the same as it has in every other cross case taken to an appeals court,” Kreisner said. “That is, the (cross) violates constitutional law and must be removed.”

Anticipating unsuccessful appeals, both the city and county of San Diego have taken steps in recent weeks to transfer the land underneath each cross to private groups.

Kreisner has consistently maintained that the transfers are shams aimed at evading the law.

The city voted Feb. 24 to authorize the sale of a 15-foot by 15-foot parcel of land underneath the Mt. Soledad cross to the Mt. Soledad Memorial Assn., which owns the 43-foot concrete cross itself, for $14,500. That proposition will be put to voters on the June 2 ballot.

The county voted Feb. 25 to transfer the 36-foot Mt. Helix cross and a circular plot of ground on which it stands to the nonprofit San Diego Historical Society.