Appeal Court May Uphold Ban on Crosses : Symbol: A lower court had ruled that the Mt. Soledad and Mt. Helix fixtures violate consitutional ban on mixing church and state.

A federal appeals court seemed poised Tuesday to affirm a San Diego judge’s ruling that the landmark crosses atop two San Diego-area public parks are illegal, with one judge wondering what it will take to “get (government) out of the business of religion.”

In a hearing on the emotionally charged issue of the cross as religious symbol on public property, a three-judge panel of the U.S. 9th Circuit Court of Appeals signaled that it was likely to uphold a ruling that the two crosses--on Mt. Soledad in La Jolla and Mt. Helix near La Mesa--violate the state Constitution’s ban on mixing church and state.

Lawyers for the city and county of San Diego claimed Tuesday that the crosses are historical landmarks that deserve to stand. But the panel appeared to side with attorneys for a coalition of atheist activists and civil libertarians who said a cross was an obvious religious symbol and nothing more.

Judge Mary Schroeder asked: “What else does it symbolize beyond a cross?”

Judge Robert Beezer, the panelist who had asked a lawyer for the county about getting government “out of the business of religion,” even had his briefs packed and stacked well before the end of the city’s presentation.

U.S. District Judge Gordon Thompson Jr. ruled in December that the crosses, both of which are visible for miles, offend the state ban on mixing church and state. For the same reason, he ordered the city of La Mesa to remove depictions of the Mt. Helix cross from its official insignia.

The case has drawn intense attention around San Diego, where it has provided fodder for months for radio talk shows and letters to the editor. Local politicians have nearly unanimously condemned Thompson’s ruling. Community groups have staged protests of the ruling at the hilltop crosses, demanding that they be saved. Both cities and the county vowed to appeal.

The 43-foot Mt. Soledad cross, dedicated in 1954, rests in the midst of a 170-acre park that has belonged to the city of San Diego since the 19th Century. The 36-foot Mt. Helix cross has been county property since 1929.

County supervisors voted Feb. 25 to transfer the Mt. Helix cross and a small plot of land underneath it to the nonprofit San Diego Historical Society. The San Diego City Council voted Feb. 24 to authorize the sale of a small parcel of land underneath the Mt. Soledad cross to the private association that owns the cross itself, subject to voter approval June 2.

La Mesa has since removed the depiction of the Mt. Helix cross from its insignia. The crosses themselves are still standing, pending what could be years of appeals. The hearing Tuesday--before the 9th Circuit, the court that serves California and eight other Western states--marked the first step in the federal appeals ladder.

No governmental body has ever won a federal appeal of an adverse decision in a cross case. Nevertheless, lawyers for both cities and county said Tuesday after the hearing that they remained optimistic.

“It’s hard to predict, but we feel we’re morally right on the issue of historical preservation,” said Michael B. Poynor, a lawyer for the county. He added, “If they uphold ompson’s ruling), it means government cannot preserve anything of historical value that has religious overtones.”

Attorneys for the activists who filed a lawsuit challenging the crosses said they, too, were hopeful. The 9th Circuit court has no deadline for issuing its ruling, meaning it could be a few weeks or many months before a decision is announced.

“This is not a close case,” Peter Irons, a lawyer for an atheist who filed suit against the Mt. Soledad cross, said after the hearing. “This is a fairly clear case. You can tell because the city was talking in there about everything except what the cross means.”

The case began in 1989, when two atheists, Howard Kreisner and Philip K. Paulson, sued the city of San Diego over the Mt. Soledad cross. In 1990, the American Civil Liberties Union joined in, challenging the county on the Mt. Helix cross and La Mesa on the insignia.

Thompson issued his ruling last Dec. 3.

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

In his ruling, Thompson said he was bound by that decision, which cited 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 last July.

In the hearing Tuesday, Kristine L. Wilkes, a lawyer for the city of San Diego, argued that the crosses were religious symbols that time had turned into historical, secular landmarks.

“It is a religious symbol to some,” Wilkes said, referring to the Mt. Soledad cross. “But it has become a landmark to the community. Joggers run by there. Couples get married there. It’s part of our heritage. It’s difficult to explain, but it just is.”

Schroeder said, “I suppose the same could be said of St. Patrick’s Cathedral,” the famous church in New York. “But it’s still a religious symbol.”

Poynor, the county lawyer, said local governments ought to preserve historical sites. “If it’s the best little whorehouse in Texas, we’re preserving history without approving of prostitution,” he said.

Countered Judge Thomas Tang, the third member of the panel, “Is that a justification for a municipality to maintain” the cross?

Beezer grilled Poynor about the county’s Feb. 25 transfer of the Mt. Helix cross and a circular plot around it to the historical society, implying it was done to circumvent Thompson’s decision.

The cross sits in a 4-acre park that had been deeded to the county in trust, and Beezer said the Feb. 25 transfer did not take account of various technicalities in trust law. “It looks to me like you breached the trust,” the judge said.

Poynor said the county made the transfer in good faith. He added that it would have been logistically impossible to get prior court approval for the transfer.

“Suffice it to say there are many questions involved here,” Tang said at the end of the hearing.

Both Tang and Schroeder are from Phoenix and were nominated to the 9th Circuit court by President Carter. Beezer, from Seattle, was nominated by President Reagan. Like all federal judges, they have life tenure.