2 San Diego Park Crosses Ruled Illegal

A federal appeals court ruled Tuesday that two highly visible, large crucifixes erected in public parks in San Diego violate the California Constitution’s prohibition against government assistance to religion.

The U.S. 9th Circuit Court of Appeals also ruled that the city of La Mesa violated the state Constitution by having a cross on the official city insignia, which appears on city police vehicles and on uniforms worn by police and firefighters.

The appeals court decision unanimously affirmed rulings by U.S. District Judge Gordon Thompson in San Diego which forbade “the permanent presence of each cross” on public property.

However, Tuesday’s decision seemed unlikely to end either the legal battle over the crosses or the political controversy it has spawned. One of the crosses was given to a nonprofit organization and sale of the other to a private party is pending. But opponents of the crosses contend that the transfers are subterfuges that will be challenged.

The appeals court decision was based on a section of the California Constitution that guarantees the “free exercise and enjoyment of religion without discrimination or preference.” The provision, known as the “No Preference” clause, is considered an even stronger statement requiring separation of church and state than the provisions of the U.S. Constitution.

The suits were filed by four San Diego County residents who said they were offended by the use of public property and expenditure of funds for the crosses and the insignia.

Although the suits raised state and federal constitutional issues, 9th Circuit Judge Robert Beezer said he was basing the decision on the California Constitution because “federal constitutional issues should be avoided when the alternative ground is one of state constitutional law.”

Lawyers for the city and county of San Diego said the crosses had taken on secular symbolism over the years, and La Mesa officials said the insignia was not designed to favor religion but because it depicts the Mt. Helix Cross, a prominent identifying city landmark.

The appeals court said it considered five factors in determining whether the crosses and the La Mesa insignia violate the state Constitution: the religious significance of the display; the size and visibility of the display; the inclusion of other religious symbols; the historical background of the display; and the proximity of the display to government buildings or religious facilities.

The 36-foot-tall Mt. Helix cross, which is illuminated nightly, was erected in the mid-1920s by a San Diego family as a memorial to their mother on one of the highest hills in San Diego County. The judges noted that the cross is visible from a substantial distance and serves airplane pilots as a navigational aid.

In 1929, one of the donors deeded 3.2 acres, including the cross, to San Diego County and established a trust fund, with the county as trustee, to maintain the cross and to contribute toward an annual Easter celebration. County employees administer the trust fund. Public funds contribute to the maintenance of the park, known as the Mt. Helix Nature Theatre.

“The Latin cross is the preeminent symbol of Christianity,” Beezer emphasized in reviewing the factors in each situation.

As to the Mt. Helix cross, he concluded: “The size and religious significance of the cross, along with the lack of other religious symbols or independent historical significance, creates an appearance of religious preference.”

Judges Mary Schroeder and Thomas Tang joined in the opinion.

The other cross at issue was erected in 1954, at an Easter Sunday religious service, by the Mt. Soledad Memorial Assn., a private organization. The 43-foot-high cross was dedicated to American war veterans. Although primarily maintained through private funds, Judge Thompson found that some public funds have been expended to maintain the cross.

“We hold that the mere designation of a display as a ‘war memorial’ is not enough to satisfy the more seperationist No Preference Clause of the California Constitution,” Beezer wrote.

Michael L. Crowley, a San Diego lawyer who represented one of the plaintiffs on behalf of the American Civil Liberties Union, applauded the ruling.

“When the courts seem to be sliding away from the important cases of the past, which called for a distinct wall of separation between church and state, this decision by a court made up of appointees both from Reagan and Carter is particularly important,” Crowley said.

Howard Kreisner, an atheist activist who was one of the plaintiffs, said he was pleased, but added that he does not expect San Diego officials to stop the battle. “They’re going to try any kind of monkey business they can contrive to keep the (Mt. Soledad) cross where it doesn’t belong,” he said.

Kreisner noted that three months after Thompson’s decision, the city of San Diego voted to authorize the sale of a 15-foot-square parcel of land underneath the Mt. Soledad Cross to the Mt. Soledad Memorial Assn. for $14,500. The sale has not yet been consummated.

Also in February, 1992, the San Diego County Board of Supervisors voted to give the San Diego Historical Society the Mt. Helix Cross and a parcel of land 30 feet in diameter beneath the cross. The transfer has been completed.

Linda Hills, executive director of the American Civil Liberties Union, contends that the Mt. Helix transfer, and the pending Mt. Soledad transfer, “do not adequately remedy the constitutional violation” because only small parcels of land have been transferred and the crosses remain in large public parks, giving the impression that the government is sponsoring them. Crowley called the transfers a subterfuge.

Ian Fan, an assistant county counsel in San Diego, said the Board of Supervisors considered the Mt. Soledad transfer valid. He said he was not sure if the county would appeal.

Mary Kay Jackson, a deputy city attorney, said she also was unsure whether the city would appeal. “We need to talk to our client, the City Council. . . . It’s really touchy. It’s a tough call, especially when politics is involved.”

Thompson’s original ruling touched off an emotional furor in San Diego that provided fodder for months of radio talk shows and calls for the state Constitution to be amended.

Times staff writer Alan Abrahamson contributed to this story.