Responding to the legal wrangle over two San Diego-area hilltop crosses, a group of politicians announced Thursday that it will seek a state constitutional amendment to clear the way for the display of religious symbols on public property.
Assemblywoman Carol Bentley (R-El Cajon) said she will introduce legislation to amend the California Constitution so that it provides the same protections for religious freedoms as the U.S. Constitution.
The proposal immediately drew sharp criticism from civil libertarians and law professors, who said the state Constitution now offers broader protections than the federal Constitution in the emotionally charged field of separation of church and state.
And at least one of the politicians who had signed up to co-sponsor the bill, Assemblywoman Dede Alpert (D-Del Mar), said Thursday that she has reconsidered. The bill could set a dangerous precedent, especially in abortion rights, if state-backed rights were limited by federal standards, Alpert said.
Last Dec. 3, U.S. District Judge Gordon Thompson Jr. in San Diego ruled that the Mt. Soledad cross in La Jolla and the Mt. Helix cross near La Mesa violate the state Constitution’s ban on mixing church and state. For the same reason, Thompson ordered the city of La Mesa to remove depictions of the Mt. Helix cross from its official insignia.
The case has since been prime local talk show and editorial page fodder. Both cities and the county vowed to appeal.
Earlier this week, the federal appellate court that serves California and the West, the U.S. 9th Circuit Court of Appeals, heard oral arguments in the case. It could be weeks or months before the 9th Circuit court issues a ruling, but a three-judge panel signaled that it seems likely to affirm Thompson’s ruling.
Thompson’s ruling was based on the guarantee in the California Constitution to the 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 U.S. Constitution lacks such a clause.
Because of the little-known clause, the state Constitution forbids even “the appearance of religious partiality,” and the Mt. Soledad and Mt. Helix crosses loom large as huge symbols of Christianity, Thompson said.
Bentley’s proposal would leave the “no preference” clause in the state Constitution. But it would add a section directing judges to interpret it as if it were the federal Constitution.
To become law, the amendment needs the two-thirds vote of the state Legislature, then voter approval.
Bentley said in a statement that she expects that the amendment would “avoid” future rulings like Thompson’s.
“These crosses are historic (and) they represent not just religion but an identity that transcends religion--an identity of love and kindness,” Bentley said in the statement. “If we as taxpayers can’t have these type of symbols on our land, what can we have?”
An aide to Bentley said the Assembly’s Judiciary Committee would take up the amendment at a hearing Wednesday.
County Supervisor George Bailey said he came up with the idea of the amendment, then pitched the notion to Bentley.
“If that amendment had been in there,” Bailey said, “we wouldn’t have had this decision against the crosses.”
State Sens. Bill Craven (R-Carlsbad) and Wadie Deddeh (D-Chula Vista) indicated they would co-sponsor the bill. So did these members of the Assembly: Steve Peace (D-Rancho San Diego), Mike Gotch (D-San Diego), Tricia Hunter (R-Bonita) and Robert Frazee (R-Carlsbad).
Alpert said in an interview Thursday that she considers the crosses historical landmarks worthy of saving.
But, she said in a letter sent Thursday to Bentley, a second look at the proposal led her to conclude that conforming the state Constitution to the federal Constitution could be an ominous precedent--particularly since the U.S. Supreme Court is expected this summer to scale back or gut Roe vs. Wade, the landmark 1973 decision guaranteeing abortion rights.
Alpert is a supporter of abortion rights. Bentley is an anti-abortion advocate.
“By this summer we’re all quite sure we’re going to be facing this in California,” Alpert said in a phone call from Sacramento, referring to the abortion issue. “And that’s a case where I want the California Constitution to be stronger and better than the federal Constitution.”
Abortion rights are rooted in the right to privacy, which is expressly spelled out in the California Constitution but not in the U.S. Constitution.
Betty Wheeler, legal director of the American Civil Liberties Union’s San Diego office, said Thursday that the amendment proposal “underscores why we have to put our fundamental civil liberties beyond political reach.”
“Time and time again, we have seen politicians who are willing to trade our civil liberties for a mess of pottage,” Wheeler said.
Erwin Chemerinsky, a professor of constitutional law at USC, said the current U.S. Supreme Court is “very much limiting its use of the U.S. Constitution,” preferring to let “the states make their own choices” in controversial areas of law such as privacy rights or search and seizure.
Referring to the cross cases, he said, “It would be a very bad thing to change a broad constitutional provision that might be necessary in the future and essentially gut it to achieve a result in one case.”