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December 3, 1991

JOHN MURPHY, Plaintiff,
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"



 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.



 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,

 government counsel put it at argument that if the plaintiffs didn't like to look at the creche, they could avoid walking near the Ellipse while it was occupied by the creche. [The Court of Appeals for the District of Columbia disagreed, however, and held that the p]laintiffs were entitled, as members of the public, to enjoy the park land and its devotion to permissible public use; a government action cannot infringe that right or require them to give it up without access to the court to complain that the action is unconstitutional.

 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"



 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 review of all three cases reveals that the complaint in each alleges violations of three state constitutional provisions: first, the No Preference Clause of Article I, Section 4; second, the Establishment Clause of Article I, Section 4; and third, the Prohibition on Religious Appropriations Clause of Article XVI, Section 5. See Cal. Const. art. I, § 4 and art. XVI, § 5. Because the court holds today that the challenged practices in all three cases violate California's No Preference Clause, it is unnecessary to engage in further analysis under either the California or United States Constitutions.

 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 No Preference Clause.

 The Ninth Circuit, the interpretations of which this court is duty-bound to follow, recently considered the language of the No Preference Clause and the jurisprudence arising from it. See Hewitt v. Joyner, 940 F.2d 1561 (9th Cir. 1991). In so doing, the court relied principally on two California cases which, it stated, "define the state constitutional limits on governmental-sponsored religious displays." Id. at 1567. The two cases are Fox v. City of Los Angeles, 22 Cal. 3d 792, 150 Cal. Rptr. 867, 587 P.2d 663 (1978) and Okrand v. City of Los Angeles, 207 Cal. App. 3d 566, 254 Cal. Rptr. 913 (2d Dist. 1989).

 In Fox, plaintiffs challenged whether the City of Los Angeles could constitutionally light a cross on city hall during Christmas and Easter. The California Supreme Court, ruling on appeal, acknowledged that "[i]n the California Constitution there is no requirement that each religion always be represented." Fox, 22 Cal. 3d at 797 (quoted in Hewitt, 940 F.2d at 1567). The Court further ruled, however, that "to illuminate only the Latin cross does seem preferential when comparable recognition of religious symbols is impracticable." Id. (quoted in Hewitt, 940 F.2d at 1567). So ruling, the Court found in favor of plaintiffs and against the city. As stated subsequently by the Second District Court of Appeal, the city's conduct was unconstitutional because the city's "failure or inability to recognize the symbols or holidays of other religions showed a clear act of preference." Okrand, 207 Cal. App. 3d at 579.

 Thereafter in Okrand, the Second District considered the constitutionality of Los Angeles' display of another religious symbol: an unlit menorah, salvaged from the Holocaust and exhibited together with a Christmas tree in the city hall rotunda. Ruling on the constitutionality of the menorah display, the court held that "in the context in which it allowed the Katowitz Menorah to be displayed, the city exhibited no preference for the Jewish religion . . ." Id. at 579.

 In so holding, the court expressly identified four circumstances which materially distinguished the display in from that in Fox: First, the Okrand display's menorah was less religiously symbolic than the Latin cross displayed in Fox. *fn20"

 Second, the Okrand menorah was considerably less conspicuous than the Fox cross. *fn21" Third, the Okrand display included "comparable recognition of other religious symbols." *fn22" See Okrand, 207 Cal. App. 3d at 579. Fourth and finally, the menorah's "unique historical background . . . [rendered it] more a museum piece than a symbol of religious worship." *fn23" See id. at 580. On the basis of these four factors,

 the Okrand court found the display did not exhibit a preference for one religion . . . [and t]herefore . concluded that the city's display of the unlit menorah was permissible under . . . the California . . . Constitution[].

 Hewitt, 940 F.2d at 1568.

 Relying principally on the opinions in Fox and Okrand, the Ninth Circuit concluded in Hewitt that the No Preference clause of the California Constitution flatly prohibits a governmental body from even appearing to prefer one religion over another or others. See Hewitt, 940 F.2d at 1567 ("not only may a governmental body not prefer one religion over another, it also may not appear to be acting preferentially"). See also id. at 1566-1567 (quoting Sands v. Morongo Unified School Dist., 53 Cal. 3d 863, 281 Cal. Rptr. 34, 809 P.2d 809 (Sup.Ct. 1991) (Kennard, J.) (plurality opinion) and citing Okrand).

 Having so construed the No Preference Clause, the Hewitt court then addressed itself to the controversy before it, in which plaintiffs challenged whether San Bernardino County could constitutionally own and maintain a public park which contained religious statuary depicting New Testament scenes. The court ruled that "because of their dominance of the landscape, the statues are more symbols of worship than museum pieces." Id. at 1568. On this and other grounds, *fn24" the court held the County's ownership and maintenance of the park unconstitutional.

 Distilling the opinions in Hewitt, Okrand, and Fox into a set of guiding principles, this court concludes that according to California law, a government body is conducting itself unconstitutionally whenever it so much as appears to be preferring one religion over another or others. See Hewitt, 940 F.2d at 1567; above p.16. Further, although no single circumstance may act as a litmus test for assessing the appearance of preference in a government display, nevertheless certain circumstances are highly probative. Among those circumstances are:

  1. the religious significance of the item(s) challenged in the display;

 2. The size and visibility of the display and of the item(s) in it;

 3. Whether the display includes any comparably significant item(s) of other religions; and

 4. The historical background of the item(s) included in the display.

 Accordingly, the court must inquire into these, and other probative circumstances, in assessing whether the government conduct at issue in each of the present three cases unconstitutionally expresses a religious preference.

 B. The Mt. Helix Cross

 The Ninth Circuit's construction of the No Preference Clause subjects public entities to a demanding standard of constitutional compliance. So demanding is that standard that, even embracing the religiously neutral intentions alleged by the County, *fn25" this court still is unable to hold other than that the County's conduct with respect to the Mt. Helix cross impermissibly violates the California Constitution.

 1. The Okrand factors

 Inquiring into the four distinguishing factors discussed by the Okrand court and subsequently focused upon by the Ninth Circuit in Hewitt, see above pages 14-16, 17 and Hewitt, 940 F.2d at 1568, the court notes that not one of these factors is satisfied by the conduct challenged in the present case.

 a. Religious significance of the Latin cross

 Beginning with the first of the four factors, the court finds that the Latin cross is a powerful religious symbol. It is true, as evidenced by the varying sentiments of the plaintiffs in the instant three actions, that different individuals may identify with the Latin cross in different ways and in differing degrees. That the Latin cross is the principal symbol, and a universally recognized symbol, of Christianity, however, is beyond dispute. For regardless of how one may choose to characterize the Latin cross, the fact remains that

 the cross is the preeminent symbol of many Christian religions and represents with relative clarity and simplicity the Christian message of the crucifixion and resurrection of Jesus Christ, a doctrine at the heart of Christianity.

 Okrand, 207 Cal. App. 3d at 579-580. *fn26"

  Not only is the cross a profoundly religious symbol; it also is an exceedingly powerful symbol. As the United States Supreme Court once observed,

 symbolism is a primitive but effective way of communicating ideas. The use of an emblem . . . to symbolize some system, idea, [or] institution . . . Is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to [symbols] . . . The church speaks through the Cross, the Crucifix, the altar and shrine . . . Symbols of State often convey political ideas just as religious symbols come to convey theological ones.

 West Virginia Board of Education v. Barnette, 319 U.S. 624, 632, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943) (striking down compulsory participation of public school students in flag salutes) (quoted in Greater Houston Chapter of the American Civil Liberties Union v. Eckels (Eckels), 589 F. Supp. 222, 235 (S.D. Tex. 1984), appeal dismissed, 755 F.2d 426 (5th Cir. 1985), reh'g denied en banc, 763 F.2d 180 (5th Cir. 1985), cert. denied, 474 U.S. 980 (1985)).

 So powerful is the image of the cross on Mt. Helix, for example, that amicus curiae, who resides with his wife in a home with a view of the cross, declares:

 The memorial cross on top of Mt. Helix has been a source of inspiration and comfort to us both in times of adversity, and has played, and continues to play, a personal and instrumental part in the daily practice of our faith.

 Were the cross removed [our residence] would have a diminished appeal to other members of the Christian faith who would be potential purchasers.

 Declaration of Arlington Ray Robbins in Support of Motion to Intervene, at pp. 3-4.

 Further evidence of the Mt. Helix Latin cross' powerful religious symbolism may be gleaned from a catalogue of "what the site has been used for since the [cross was] constructed . . . Easter sunrise services and . . . wedding[s]." Eckels, 598 F. Supp. at 235. *fn27" See above note 11. Activities such as these not only reflect, but also augment, the religious significance of the cross on Mt. Helix. cf. County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter (Allegheny), 492 U.S. 573, 599, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989). *fn28"

 b. Size and visibility of the display

 The powerful religious symbolism of the Mt. Helix Latin cross is further amplified by its sheer size and visibility. Standing alone at the very summit of Mt. Helix, illuminated every evening, and discernible from a considerable distance, Mt. Helix's Latin cross is the focal point of the public park in which it is located. *fn29" Further, the cross' commanding skyline presence effectively precludes the County from being able to successfully dissociate itself from the cross' symbolism. After all, the cross is so prominent that even were the County to install a plaque or sign expressing a message of non-preference, still the vast majority of people who see the cross -- those who view it from afar -- would not receive the benefit of knowing what the plaque said. *fn30"

 c. Comparable symbols of other religions

 Were the Nature Theatre to include symbols of other religions, comparable in significance to the Latin cross and similar in stature to its embodiment atop Mt. Helix, then any impermissible appearance of religious preference would be diminished, if not eliminated. By way of example, the City of Los Angeles successfully neutralized the potential appearance of preference in its display of the Katowitz menorah by recognizing along with the menorah a Christmas tree together with other non-Jewish religious and secular symbols. Viewed in light of the No Preference Clause line of opinions which precede this case, however, the government conduct presently at issue appears to be considerably more akin to the government conduct struck down in Fox and Hewitt than to that upheld in Okrand. Both Fox and Hewitt implicated displays of a symbol or symbols associated with only one religion. Similarly, San Diego's present conduct in displaying the cross atop Mt. Helix is not neutralized by recognition of the symbols or rituals of other religions. *fn31"

 d. Historical background

 As for the fourth and final factor identified in Okrand -- the historical background of the item(s) included in the display - the court notes that dating as far back as it does and recognized as widely as it is, the cross atop Mt. Helix no doubt has acquired local historic significance. The historic significance of the cross on Mt. Helix is of a different quality, however, than that of displays such as the menorah salvaged from the Holocaust and upheld in Okrand. The Okrand display's significance lay in the unique set of global historical circumstances -- world war, totalitarianism and genocide -- from which the Katowitz menorah emerged. By contrast, the Mt. Helix cross' significance lies primarily in its prominence, its longevity and its association with the annual Easter sunrise service. Whereas in Okrand the item displayed sprang from the historical circumstances which rendered it significant, in the present situation it is the historical circumstances which spring from the item displayed. The historical significance of the cross on Mt. Helix, in other words, derives primarily from long use. As the Supreme Court has made emphatically clear, however, "no one acquires a vested or protected right in violation of the Constitution by long use." Walz v. Tax Commission, 397 U.S. 664, 678, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970); Committee for Public Education v. Nyquist, 413 U.S. 756, 792, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1973) (quoting and distinguishing Walz). *fn32"

  e. Location

 In addition to the four factors identified as probative in the Okrand opinion, the court identifies a fifth: location. Insofar as its location, the Mt. Helix cross is less susceptible to the danger of exhibiting preference than were the Fox cross and the Okrand menorah. The cross in Fox was emblazoned across the face of as explicit a symbol of public life and governance as Los Angeles City Hall. The menorah in Okrand, though less conspicuous, also was located at City Hall. The public property with which the Mt. Helix cross is associated -- a park, by contrast -- does not symbolize government authority. Accordingly insofar as its location, the Mt. Helix cross compares favorably to the symbols considered in Fox and Okrand.

 Still, however, the court notes that the public environment in which the Mt. Helix cross is displayed is not dissimilar to that in which the statuary struck down in Hewitt also were displayed. True, the presence of a church beside the park in Hewitt rendered the statuary display more preferential in appearance than has the Nature Theatre rendered the cross on Mt. Helix. Nevertheless, it is noteworthy that a display need not be as conspicuously associated with the government as were the displays in Fox and Okrand in order to run afoul of California's No Preference Clause. *fn33"

 Considered together, the five circumstances discussed above characterize the prominent government display of a solitary symbol laden with religious meaning, the sectarian significance of which is moderated neither by the display's history nor by its remoteness from symbols of governance.

 2. Non-factors

 In addition to the five circumstances discussed above, the court notes that additional qualities characterize the cross on Mt. Helix and the County's conduct with respect to it. Among these are (a) the nature and extent of public expressions both in support of and in opposition to the cross, (b) the economics of requiring that the County remove the cross or divest itself of the property on which the cross now stands, and (c) the reversionary consequences for Mt. Helix Nature Theatre should the County in fact be required to part company with the cross.

 Notwithstanding the relevance of these matters to the history and future disposition of the Mt. Helix cross, however, the court may not consider them in ruling on the constitutionality of the County's relationship with the cross.

 a. Silence of religious minorities

 First, the court notes that the cross stood, unchallenged, on public property for a period of sixty-one years before this lawsuit was filed and, moreover, that the record in this case reveals few public expressions of opposition to the cross' presence. Ironically, the individual challenging the presence and disposition of the cross identifies himself as a Catholic and, therefore, as someone for whom the cross presumably is a symbol of reverence. In contrast to plaintiff's expression of concern at the public presence and disposition of the symbol of his faith are the expressions of concern which individuals of other faiths have voiced at the prospect of that symbol's removal. Says Rabbi Michael P. Sternfield: "I do not know of anyone in the organized Jewish community who wants to make an issue of these crosses." See Letter to the Editor written by Rabbi Michael P. Sternfield and published in The San Diego Union.34

 His letter notwithstanding, however, Rabbi Sternfield cannot be said to speak for the entire community of non-adherents to Christianity. The record reveals the existence of other individuals -- adherents and non-adherents: Catholics, Jews, Atheists and others -- who feel injured by the presence of one or more of the Latin crosses involved in this, and its companion, cases. *fn35" That neither these individuals nor others expressed concern before now cannot be interpreted as an indication that the County's conduct with respect to the cross does not exhibit preference. In Fox, which presented a situation not dissimilar in this regard to the situation presently before the court,

 the City of Los Angeles contended that because the cross-lighting had occurred for 30 years without citizen complaint, obviously the public did not perceive any preference on the part of the city. The court rejected this argument, [however,] acknowledging that the silence of religious minorities may signal something quite different from disinterest.

 Hewitt, 940 F.2d at 1567 (citations omitted) (citing Fox, 22 Cal. 3d at 797 ).

 b. Cost

 A second circumstance, with respect to which the court is aware, but which the court must not consider in ruling on the constitutionality of the County's acquiescence in the presence of the cross, is the matter of thrift. The court acknowledges that, quite apart from whatever range of personal and religious meanings have been ascribed to the Mt. Helix Latin cross over time, the cross also has evolved a separate, secular importance, for example, as a navigational aid for pilots. Therefore, it is not implausible that the assistance which the cross provides to pilots and navigators is one reason why the County permits the cross to stand. Had the Latin cross not already been present when the County acquired Mt. Helix, then perhaps the County would have chosen to erect a different edifice in order to assist pilots.

 The cross' having already been built, however, it may be argued that the County should not have to incur the superfluous expense and inconvenience of razing the cross and replacing it with a secular edifice dedicated to the very same end. Moreover, it could be argued to be a violation of the public trust were the County, as beneficiary of Cyrus Yawkey's largesse, to destroy, let deteriorate or otherwise squander a useful asset, such as the Latin cross, then present on the deeded land.

 The argument is cogent; however, it can be no more persuasive in this and the accompanying two cases than have been similar such convenience-, efficiency- and expense-oriented arguments which the Supreme Court traditionally has rejected in vindication of constitutional rights. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 690, 36 L. Ed. 2d 583, 93 S. Ct. 1764 (1973) (due process); Stanley v. Illinois, 405 U.S. 645, 656, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972) (same); Reed v. Reed, 404 U.S. 71, 76, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971) (equal protection); Carrington v. Rash, 380 U.S. 89, 96, 13 L. Ed. 2d 675, 85 S. Ct. 775 (1965) (equal protection, right to vote). Quite simply, mere inconvenience cannot be permitted to trump constitutional strictures such as those regulating the relationship between religion and the state. The court, therefore, holds that the economic expense of removing the cross, of rendering non-public the property on which the cross stands or of otherwise attempting to cure the present infirmity may not bear on the constitutional challenge presently before the court.

 c. Reversionary consequences

  Finally, the reversionary consequences of the cross' removal also may not inform the court's decision.

  The court entertains no doubt that the County's conduct in permitting the cross to stand atop Mt. Helix is motivated considerably, if not principally, by the desire to preserve Mt. Helix Nature Theatre as a public park. After all, the reversionary clause in the deed conveying Mt. Helix Nature Theatre appears to suggest that preservation of the cross atop Mt. Helix is necessary in order to preserve the Nature Theatre as a public park. *fn36" Moreover, equally necessary (according to the terms of the deed) in order for the park to remain in the public domain is adherence to the covenants requiring that an Easter service occur annually at the Theatre and that the cross be illuminated during specified Christian holidays. *fn37" If the County fails to perform a single one of these covenants, then it risks the park property's reversion to the heirs of Cyrus Yawkey. Thus it is fair to infer that the preservation of a public park is a principal factor motivating the County to permit the cross to stand, to restrict the Theatre's use annually on Easter Sunday and to permit the cross to be illuminated on certain nights of the year.

  Whatever the reason may be for San Diego County's compliance with the restrictive covenants, however, it is axiomatic that restrictive covenants and potential possibilities of reverter may not compromise guarantees so fundamental as to be reposed in the Constitution either of the United States or of any constituent state. By way of example, if the Yawkey deed included a covenant requiring that the Mt Helix Nature Theatre revert to a private interest if a white person used the property, then the County's conduct in excluding whites from the park would satisfy its contractual covenant yet violate the guarantees of equal protection found in both the California and United States constitutions. See Cal. Const. art. I, § 7 (equal protection); U.S. Const. amend. XIV, § 1 (same). Accordingly, the County's conduct would be unconstitutional as a matter of law, and the County would be required to stop excluding whites, regardless of the attendant reversionary consequences. In that case, as in this, to permit the reversionary consequences of covenant noncompliance to influence the court's ruling on a constitutional issue would be to render subordinate to private contract the fundamental, constitutional directives which this court is sworn to uphold.

  Just as the court may not suspend the directives of the Equal Protection Clause in vindication of public space, so may it not suspend the directives of the No Preference Clause in pursuit of the same end. Before the court is a constitutional challenge, not an action for declaratory judgment or contractual breach. Accordingly, only the constitutional issue is ripe for adjudication, and the reversionary consequences of today's decision must be left to be adjudicated another day. See Evans v. Newton, 382 U.S. 296, 15 L. Ed. 2d 373, 86 S. Ct. 486 (1966) (whether designating public park for exclusive use by white people satisfies the Fourteenth Amendment is an issue to be considered separately from the reversionary consequences of extending park use to non-whites).

  The court now turns to Civ. No. 89-0820 GT, challenging the inclusion of a Latin cross on the insignia of the City of La Mesa.

  C. The La Mesa Insignia

  The City of La Mesa contends that including the Latin cross on its official insignia is intended to help the public identify the insignia's bearers with the city of La Mesa. Mt. Helix is a prominent local landmark commonly associated with La Mesa, and the Latin cross atop Mt. Helix is its unique distinguishing feature. As the city's counsel stated in oral argument,

  The logo clearly depicts Mount Helix, and I think that depiction is certainly logical. The city of La Mesa has been known for many, many years as "the Jewel of the Hills." Well, the Hill is Mount Helix. There is a high school named for Mt. Helix; La Mesa residents get their water from the Helix Water District; there are a wide variety of establishments in the city of La Mesa that bear the name Mount Helix and Helix . . . So there is a very firm, long standing tie between the city of La Mesa and Mount Helix.

  Given the geographic and historic nexus between Mt. Helix, the Latin cross atop it and the city of La Mesa, it is clear that the cross' inclusion on the city's official insignia would help a knowledgeable public to quickly, easily and correctly identify local police officers, squad cars, fire fighters, animal control officers and other city employees and vehicles. Accordingly, the court accepts as reasonable counsel's representation that inclusion of the cross on the city's insignia is intended to represent a well-known local feature identifiable with La Mesa and, in so doing, to render the City's property and personnel more readily identifiable.

  Were this particular feature not so closely and universally identifiable with a particular religion, then its presence on a government insignia might not disturb the No Preference Clause. Here, however, the feature depicted on what La Mesa has chosen as the symbol of its very authority to govern is the profoundly religiously symbolic Latin cross. Moreover, it is the Mt. Helix Latin cross, which this court already has found contributes to an appearance of government religious preference sufficient to render unconstitutional its presence in a public park. See above pp. 18-31. Under such circumstances, the court cannot find other than that La Mesa's incorporation of the Mt. Helix Latin cross in its official insignia communicates a message of government preference for religion in general, and for certain sects in particular, thereby violating California's proscription against the appearance of preference.

  The danger implicit in permitting the incorporation of a religious symbol within a symbol of the authority to govern has been noted by the Tenth Circuit in Friedman v. Board of County Commissioners of Bernalillo, a case involving the incorporation of the Latin cross on a city seal. In Friedman, the court expressed concern lest

  [a] person approached by officers leaving a patrol car emblazoned with this seal could reasonably assume that the officers were Christian police, and that the organization they represented identified itself with the Christian God. A follower of any non-Christian religion might well question the officers' ability to provide even handed treatment. A citizen with no strong religious conviction might conclude that secular benefit could be obtained by becoming a Christian.

  Friedman, 781 F.2d 777 (10th Cir. 1985) (en banc), cert. denied, 476 U.S. 1169, 90 L. Ed. 2d 978, 106 S. Ct. 2890 (1986) (holding district court's order upholding county seal "clearly erroneous"). *fn38" As the Friedman court further concluded, the government's inclusion of a Latin cross in its imprimatur would have "threatening connotations" for, among others, Lebanese Moslems, Northern Irish Protestants, Native Americans and Jews. 781 F.2d at 781-82. *fn39" Cf. Mendelson v. City of St. Cloud, 719 F. Supp. 1065 (M.D. Fla. 1989). *fn40"

  Clearly, the Latin cross is not a benign symbol, and the perception that it is favored could well deter non-adherents from living in, visiting, or serving as employees of the City of La Mesa. The court, therefore, holds that La Mesa's inclusion of the Latin cross on its insignia is susceptible of the appearance of government preference and, therefore, is in violation of the No Preference Clause.

  The court now turns its attention to Civ. No. 90-0135 GT and the cross atop Mt. Soledad.

  D. The Mt. Soledad Cross

  The Latin cross displayed atop Mt. Soledad is subject to the same constitutional infirmities to which the Latin cross displayed atop Mt. Helix is subject. Like its Mt. Helix counterpart, the Mt. Soledad cross is a powerful sectarian symbol, the religious effect of which is evidenced by the uses to which it has been put as the backdrop for Christian sectarian events, such as weddings, baptisms and Easter sunrise services. Its commanding presence and nightly illumination at the very summit of Mt. Soledad render it the focal point of the public park in which it stands -- so much so that it may be said, as between the Latin cross and the park, it is not clear which is meant to adorn which. No comparable symbols of other religions are present to moderate the cross' sectarian message. Nor is the cross' sectarian significance mitigated by its history. In fact, to the contrary, history belies and reinforces the sectarian significance of the Latin cross displayed atop Mt. Soledad.

  The City contends that it permits the cross to stand in order to commemorate the lives and sacrifices of fallen soldiers. "It is obvious," asserts counsel for the City, "that a cross used as a war memorial has lost its religious symbolization and has become resymbolized to take on a new commemorative secular meaning." Defendant's Memorandum of Points and Authorities in Support of Motion for Summary Judgment, November 13, 1990, at 11. Obvious though this may seem to counsel for the City, however, it is equally obvious to this court that "even if one strains to view the [cross] in the context of a war memorial, [its] primary effect is to give the impression that only Christians . . . are being honored." Eckels, 589 F. Supp. at 235. See also Declaration of Rabbi Michael Sternfield; *fn41" Libin, above n.26.

   More troubling than the City's characterization of the Mt. Soledad cross as a secular memorial, however, is its characterization of the Mt. Soledad cross as a memorial at all. Whereas Cyrus Yawkey's deed corroborates the genuineness of the commemorative objective attending the cross on Mt. Helix, no corresponding evidence corroborates the genuineness of the alleged commemorative objective which the City advances in support of the cross on Mt. Soledad. In fact to the contrary, the evidence indicates that the city's purported commemorative objective is a pretext.

  The numerous declarations, news articles, book excerpts and other exhibits submitted by the parties reveal only one occasion between the erection of the cross on Mt. Soledad and the filing of this lawsuit on which the cross site has ever been recognized as a war memorial. *fn42" That occasion was the cross' dedication on April 17, 1954, when the San Diego Union reported that the cross "is meant to be a lasting memorial to the dead of the two world wars and the Korean fighting." With the exception of this single newspaper report, there is no evidence that prior to this lawsuit the City intended the cross to serve as a memorial.

  Correspondence between the City and the Mt. Soledad Memorial Association, which the city authorized to build and maintain the cross, together with newspaper accounts from 1954 indicate that the cross was intended to replace predecessor crosses which had once been the scene of Easter sunrise services but had since been vandalized or fallen into disrepair. Clearly these predecessor crosses, which date as far back as 1913, could not have been erected as memorials to the dead of the two world wars and the Korean fighting, all of which occurred after 1913. Nevertheless, the fact that non-commemorative crosses once stood on a site where citizens subsequently chose to erect a new cross should not by itself defeat the genuineness of the new cross' purported commemorative purpose.

  News accounts reveal further indications of a religious purpose. Several such accounts indicate, for example, that a ceremony dedicating the cross occurred, as planned, on Easter Sunday 1954. Although Memorial Day occurs just 6 weeks after Easter, the Memorial Association evidently preferred to schedule the cross' completion and dedication for the day of the Resurrection. Although it could have selected any of innumerable different symbols, including many different types of crosses, in order to commemorate fallen soldiers of all faiths, the Memorial Association selected the configuration of the Latin cross, the type of cross on which biblical and historical accounts indicate that Jesus Christ, on the morning marked by Easter, rose from the dead.

  City records, correspondence and news articles indicate, moreover, that every Easter without fail since 1954, the Mt. Soledad Memorial Association has sponsored an Easter sunrise service at the site of the cross. There is no record of the Association, the City or any other organization having sponsored a memorial service or ceremony at the site of the cross on Memorial Day, Veterans Day or any other day between Easter Sunday 1954 and the day on which this suit was filed. Also during the period between Easter Sunday 1954 and the day on which this suit was filed, no plaque or sign existed to indicate to visitors that the cross was intended to commemorate our country's war dead. As plaintiffs observe, there was "no way for a visitor to know that on April 18, 1954, someone stood beside the Cross and described it as a veterans memorial."

  In light of this evidence, it is not surprising that numerous travel guides, road maps, the Yellow Pages telephone directory and even federal government publications refer to the structure atop Mt. Soledad as the "Soledad Easter Cross." Even the Mt. Soledad Memorial Association itself appears to have lost sight of the purported purpose for which it erected the cross. Its own bylaws describe its purpose as the promotion of "community interest in the development of the public facilities of the Mt. Soledad Park area." The bylaws make no reference to the commemoration of war dead.

  Faced with this battery of evidence, it is difficult to conclude that the commemorative objective advanced by the City is anything other than pretext. The court, therefore, finds that insofar as the disposition of the Mt. Soledad Latin cross, the City has impermissibly exhibited (if not exercised) preference. The City's conduct, consequently, is unconstitutional, and the City is directed that, if it truly wishes to honor the war dead, then it should do so other than with the Latin cross which it has permitted to stand atop Mt. Soledad. Cf. Eckels, 589 F. Supp. at 234 ("because the county can effectively recognize its war dead without resort to the use of these religious symbols, it must do so").



  The No Preference Clause, which California courts and the Ninth Circuit have interpreted as censuring so much as even the appearance of religious partiality, is a sweeping constitutional edict. Insofar as the No Preference Clause is also the supreme law of California, binding constitutional precedent compels this court to hold that the permanent presence and disposition of the Latin crosses atop Mt. Helix, atop Mt. Soledad and on the La Mesa insignia are unconstitutional.

  Were the parcels of land atop which the Mt. Helix and Mt. Soledad crosses presently stand privately rather than publicly owned, then these cases would be entirely different. Likewise were the crosses raised only periodically in order to accommodate individuals who from time to time wish to incorporate these public spaces in their religious observance, then again the court would be dealing with an entirely different situation. Where as here, however, the Latin cross appears as a permanent, salient symbol on public property and on a public imprimatur, California's Constitution will not permit it to continue to stand.

  As to each of these three cases, the court enters summary judgment for plaintiffs and issues a permanent injunction forbidding the permanent presence of each cross on the public property or imprimatur where it currently appears. The court grants defendants three months within which to comply with its order and further directs that any stay of the order should be sought from the Court of Appeals.


  date December 3, 1991


  United States District Judge

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