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MURPHY v. BILBRAY

December 3, 1991

JOHN MURPHY, Plaintiff,
v.
BRIAN BILBRAY, GEORGE BAILEY, SUSAN GOLDING, LEON WILLIAMS AND JOHN MACDONALD, in their official capacities as members of San Diego County Board of Supervisors and the COUNTY OF SAN DIEGO, Defendants. PHILIP K. PAULSON, HOWARD KREISNER and THE SOCIETY OF SEPARATIONISTS, INC., Plaintiffs, v. CITY OF SAN DIEGO, CALIFORNIA, Defendant. JAMES ELLIS, Plaintiff, v. CITY OF LA MESA, et al., Defendant.



The opinion of the court was delivered by: GORDON THOMPSON, JR.

 Before the court are 3 consolidated cases, each of which challenges the constitutionality of a local municipality's conduct with respect to the so-called "Latin cross." The Latin cross is a cross the stem of which is longer than its three other arms. One such cross, the Mt. Helix cross, is located in a municipal park in San Diego County. A second, the Mt. Soledad cross, is located in a municipal park in the City of San Diego. A third such cross is depicted on the official insignia of the City of La Mesa, which is located in San Diego County. Plaintiffs contend that the government's acquiescence in the presence and disposition of the first two Latin crosses in public parks and in the depiction of the third Latin cross on a public imprimatur violate the constitutions both of the state of California and of the United States.

 This opinion addresses all three challenges. It proceeds first with an exposition of the facts relevant to each of the three challenges, then with a discussion of whether each plaintiff is entitled to sue, and finally with a discussion of the constitutional issues and how they bear on each challenge.

 Because these challenges come before the court at the summary judgment stage of litigation, the court is required in its analysis of defendants' motions to interpret all evidence and justifiable inferences in the light most favorable to plaintiffs. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Conversely, the court is required in its analysis of plaintiffs' motions to consider all evidence and justifiable inferences in the light most favorable to defendants. As the material facts in all three cases appear not to be in dispute, the court shall consider them identically as to both plaintiffs and defendants and shall rule on the parties' motions as a matter of law. *fn1"

 I.

 FACTS

 A. The Mt. Helix and Mt. Soledad Crosses

 The Mt. Soledad and Mt. Helix Latin crosses are substantially similar. Both stand in excess of 35 feet tall. *fn2" Both are illuminated nightly. Each is erected in, and is a prominent feature of, a publicly-owned park. *fn3" The parks in which the crosses stand are located atop two of the highest knolls in San Diego County. *fn4" So situated, each cross can be seen from a substantial distance. *fn5"

 Each of the two crosses has stood for a substantial number of years where it currently stands. *fn6"

  Neither cross was erected with public funds, *fn7" and each is the object of a private fund intended to provide for its maintenance. *fn8" Nevertheless, it appears that a small amount of public funds has also been expended for the maintenance of each. *fn9"

 Roles both religious and secular have been ascribed to each cross. Each has on occasion been used by members of the public for Christian religious purposes. *fn10" Each cross also has been dedicated as a memorial to an individual or individuals who have died. *fn11" In addition, the cross on Mt. Helix serves pilots as a navigational aid, and the cross on Mt. Soledad assists surveyors and seismologists. *fn12"

 While the two crosses clearly are alike in many respects, they also are distinguishable. In particular, it should be noted that whereas the property on which the Mt. Soledad Latin cross stands has been public for as long as the cross has stood there, the property on which the Mt. Helix Latin cross stands did not become public until after the cross had been erected on it. *fn13"

 B. The La Mesa Insignia

 The Latin cross at issue in the La Mesa case appears in an illustration on the city of La Mesa's official insignia. The illustration depicts several hills below two clouds. The cross is located at the center of the illustration, atop the highest hill and between the two clouds. *fn14" Plaintiff claims that the image formed by the cross, the hills and the clouds appears to him to be a depiction of Calvary. Defendant, the City of La Mesa, contends that the image is meant to depict Mt. Helix, which is a prominent local landmark. The insignia itself appears on police vehicles, on shoulder patches affixed to the uniforms of police, animal control and fire fighting personnel, and on official literature distributed by the city of La Mesa.

 C. The Plaintiffs and the Injuries They Allege

 John Murphy, sole plaintiff in the Mt. Helix case, is a Catholic, San Diego County resident and taxpayer who "is offended by the use of public property and the expenditure of public money to display and illuminate the cross on Mt. Helix." Complaint at 2. Although he "otherwise would visit the [Mt. Helix Nature] Theatre and take out-of-town guests there to enjoy the panoramic view it offers, [he instead] avoids visiting the Theatre because of [the presence of] the large cross." Id. at 2-3. See also Declaration of John Murphy, October 15, 1990 (Plaintiff's Exhibit 1), at 2.

 Philip Paulson and Howard Kreisner, plaintiffs in the Mt. Soledad case, both are Viet Nam War combat veterans, avowed atheists and residents and taxpayers of the city of San Diego. Complaint at 2-3, 5-7. Both submit in their complaint that they are "deeply offended" by the presence of the cross on Mt. Soledad. Id. at 3. As soldiers they saw companions in arms who adhered to many different faiths fall in combat. Id. at 5-7. Having been unable to identify the occurrence of any commemorative activities at the site of the cross, they consider its characterization as a veterans memorial an "outrageous insult." Id. at 6-7. Both Paulson and Kreisner Would like to visit Mt. Soledad in order to enjoy its spectacular view, but because the cross is there they instead avoid it. Id. at 5,7. As a result of the cross' presence, they feel they "are made to feel like outcasts and second-class citizens in their own home town." Id. at 8.

 Their co-plaintiff, the Society of Separationists, is a Maryland corporation which is licensed to do business in California and which includes them among its members. Id. at 3-4. It is a "nonprofit, nonpolitical, educational organization dedicated to the complete and absolute separation of state and religion/church . . . on behalf of its members and itself." Id. at 3.

 James Ellis, sole plaintiff in the La Mesa insignia case, is a religious Episcopalian, La Mesa resident and taxpayer who is "deeply offended by the expenditure of taxes for insignias depicting a religious symbol." Complaint at 2-3. See also Declaration of James Ellis in Support of Plaintiff's Motion for Summary Judgment, October 15, 1990 (Plaintiff's Exhibit E), at 2. Because the insignia is prominently displayed on city vehicles and on official city mailings to residents, he is unable to avoid contact with it. Id. at 3. Mr. Ellis declares that lest the cross on the insignia offend business clients or embarrass himself, he has in the past declined to invite business clients to his home when, but for the presence of the cross on the insignia, he would have invited them. Id. at 2. Mr. Ellis is particularly troubled by the way in which the insignia associates Christianity with the police department. He believes that it "symbolically tells people who are Christians that they are welcome or favored . . . and . . . tells people who are not Christians that they are outsiders or less than welcome." Id. at 3.

 II.

 STANDING

 Before this court can begin to consider any plaintiff's claim, it must first be satisfied that that plaintiff has standing to have his claim heard. That is, each plaintiff must "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (citations omitted). Plaintiffs may satisfy the injury requirement either by alleging a direct injury or by proving that they are municipal taxpayers objecting to municipal expenditures. *fn15"

 The Supreme Court has made clear that psychological injury suffered by one who observes conduct with which he or she disagrees is insufficient to confer standing. Valley Forge, 454 U.S. at 485-87 (intensity of plaintiff's interest in the separation of church and state cannot substitute for requirement of injury in fact). Thus even if the crosses offend plaintiffs, that offense is insufficient to entitle them to maintain suit.

 Notwithstanding the insufficiency of psychological injury, the Supreme Court has held that the required injury need not be severe and need not be economic. *fn16" An example of a non-economic injury which the Supreme Court has held confers standing is the deprivation of a citizen's beneficial use of a public park. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686, 37 L. Ed. 2d 254, 93 S. Ct. 2405 (1973) (claimed impediment to plaintiffs' recreational use of natural resources is sufficient to confer standing). The rationale for this holding is succinctly explained in Allen v. Hickel, 138 App. D.C. 31, 424 F.2d 944 (D.C. Cir. 1970), a District of Columbia case in which citizens challenged the display of a creche in a public park. In Allen,

 Allen, 424 F.2d at 947 (emphasis added) (footnotes omitted) (holding that standing existed); *fn17" on remand sub nom. Allen v. Morton, 333 F. Supp. 1088 (D. D.C. 1971) (holding no violation of federal Establishment Clause); rev'd 161 App. D.C. 239, 495 F.2d 65 (D.C. Cir. 1973).

 Here, plaintiff in the Mt. Helix case and the individual plaintiffs in the Mt. Soledad case allege that the County's and the City's conduct -- both in permitting the crosses to stand where they do and, allegedly, in acquiescing in the restrictive covenants associated with the Mt. Helix cross -- inhibit the plaintiffs' use of a public park. Since the deprivation of a citizen's beneficial use of a public park is an injury sufficiently direct to confer standing, see SCRAP, 412 U.S. at 686, the standing requirement in the Mt. Helix and Mt. Soledad cases is met.

 Plaintiff in the insignia case alleges that the inclusion of a cross on La Mesa's city insignia inhibits him from inviting clients to his home, thereby impeding the way he conducts his livelihood. However small it may be, this impediment to plaintiff's livelihood generates a stake in the disposition of the La Mesa cross which to this court appears no less direct than the stakes upheld in previous establishment clause challenges. See, e.g., American Civil Liberties Union v. St. Charles (St. Charles), 794 F.2d 265 at 268-69 (detouring from customary route to avoid religious display is injury sufficient to confer standing), cert. denied, 479 U.S. 961, 93 L. Ed. 2d 403, 107 S. Ct. 458 (1986); Allen, 424 F.2d at 947 (same). *fn18" Thus, the standing requirement in the La Mesa case also is met.

 The standing requirement's having been met in all three cases, the court must proceed to consider the merits of each. *fn19"

 III.

 CONSTITUTIONAL ISSUES

 Each of the three cases presently before the court raises important issues under the constitutions both of the State of California and of the United States. Because the Ninth Circuit has held that "federal constitutional issues should be avoided even when the alternative ground is one of state constitutional law," Carreras v. City of Anaheim, 768 F.2d 1039, 1042-43 (9th Cir. 1985) (citations omitted), this court turns its attention first to plaintiffs' state constitutional claims.

 A. California's No Preference Clause

 Article I, Section 4 of the California Constitution provides that:

 Free exercise and enjoyment of religion without discrimination or preference are guaranteed. The liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The legislature shall make no law respecting an establishment of religion.

 Cal. Constn. art. I, § 4. The first sentence of this section comprises California's so-called ...


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