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.
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.
IT IS SO ORDERED.
date December 3, 1991
GORDON THOMPSON, JR.
United States District Judge