s it a stunning victory for the separation of church and state? The ACLU says that it is. Or could it be a backdoor win for the County of San Diego, California and others who have fought to keep a giant Christian monument standing on public land at the top of Mount Helix? County officials insist that it is just that.

   After nearly a decade of litigation, the County and American Civil Liberties Union have agreed that the Mount Helix cross will remain standing, but ownership of the structure -- along with about five acres of land on which it sits -- will be transferred to a nonprofit organization. Judge Gordon Thompson, Jr. ruled that county control of the cross violated the separation of church and state; but he also noted that the cross could not be removed or demolished without violating the terms of a 69-year-old trust that gave San Diego 5 acres of land on which the cross was built.

   In 1990, attorney John Murphy, represented by the ACLU, challenged the Mount Helix cross arguing that its presence on public land violated the establishment clause of the First Amendment. The County of San Diego insisted that the cross was not a religious monument, but rather a memorial established according to the wishes of Cyrus Yawkey, who formed the Mount Helix Nature Park as part of a trust in 1929. Yawkey left specific instructions decreeing that the cross was to be illuminated on various occasions including Easter, Mother's Day and the birthday of his deceased mother. The cross and five acres of land were designated as a memorial to his mother, Mary Yawkey White. In addition, Cyrus Yawkey left bonds intended for the upkeep of the cross and surrounding grounds.

   San Diego County should not have taken possession of the acreage, or agreed to keep a Christian religious monument standing on what became public land. It took more than six decades for a constitutional challenge to be lodged, however. The County lost in federal and appellate court, but the technicalities of the Yawkey trust made any resolution difficult. Earlier this month, ACLU attorneys accused the San Diego County Board of Supervisors of attempting to circumvent court rulings and salvage the Mount Helix cross.

   One proposal from the county called for selling the land immediately under the cross in an effort to "privatize" the structure. Another scheme called for the park to be divided, with one section (with the cross and a separate entrance) turned over to the Mount Helix Improvement Association, and the remainder kept under control of the County. That latter section, though, would include a public amphitheater just a few feet from the cross. ACLU President Charles Bird told the San Diego Union-Tribune newspaper, "There would still be a service for Easter, the holiest of Christian holidays, on public ground beneath a cross that nobody would recognize as private."

   That plan had the support of many officials, including the State Attorney General and Supervisor Dianne Jacob, who gushed that she would continue the legal fight to keep the Christian cross "right where it belongs, atop Mount Helix."

   It remains unclear what the current settlement involves. Last week, Jacob declared, "We won. The cross will stay atop Mt. Helix, where it was always meant to be." The Union-Tribune noted that the ACLU press release took a different tone, declaring: "County of San Diego to give up Mt. Helix Cross," with a statement that: "It has taken the county nine years to acknowledge what most Americans learn in high-school civics class, that there should be a true wall of separation between church and state." Mr. Bird declared, "The cross will be there, but from now on it will be on private land, and that's fine..."

   The decision regarding the Mount Helix cross is another legal round in a culture war battle over the status of sectarian religious symbols on public property. From crosses in public parks to Ten Commandments displays in school classrooms or in government buildings, separationists are locking horns with their religious counterparts -- and governments -- over the enforcement of the First Amendment's establishment clause. The courts entertain complex, often convoluted legal arguments; in several cases involving crosses on public land, for instance, governments have argued that the cross is "not a religious symbol," much the same way they have claimed that public prayers at official meetings had little to do with religious ritual.

The courts entertain complex, often convoluted legal arguments; in several cases involving crosses on public land, for instance, governments have argued that the cross is not 'not a religious symbol,' much in the same way they have claimed that public prayers at official meetings have little to do with religious ritual..."

   The Mount Helix battle mirrors other legal squabbles over similar crosses. In 1998, what is likely the final chapter in a fight over the Mount Soledad cross was written, when the City of San Diego sold that cross and a half-acre of land on which it sits to a Memorial Association. In San Francisco, a similar move by government officials to auction off the giant Mt. Davidson cross to a private organization is being challenged by American Atheists. "It's just a ruse to get around the First Amendment," charges Dave Kong, California State Director of American Atheists. "The government is trying to 'sell' a slice of land on which a religious monument stands so that it will remain in the middle of a public park."

   In 1990, a federal judge ordered that the Mount Soledad cross had to be either sold to a private party or removed altogether. Two years ago, the Federal 9th Circuit Court agreed. A 47-foot-high cross at Skinner's Butte in Eugene, Oregon was removed and trucked off to a private Bible college. In Hawaii, Mitch Kahle and the Hawaii Citizens for the Separation of State and Church won their battle against the Kolekole cross which stood on U.S. Army land. But some governmental entities, including San Diego and San Francisco, decided to "sell" select portions of real estate -- all with the effect of keeping the enormous Christian monuments standing.

   In San Diego, Judge Thompson ruled in September, 1997 that the sale of the cross property to the Mount Soledad Memorial Association was "primarily a ploy to keep a religious symbol on some 170 acres of city parkland," noted the Union-Tribune. But Thompson based his decision only on the fact that too little land was involved, and that the sale was not done with competitive bidding. A subsequent sale with more land passed legal muster, and the "privatization" proceeded.

   So, who wins? Technically, the land and cross on Mt. Helix will be in "private" hands rendering it difficult, if not impossible, to have the Christian monument removed. It's less than what many separationists wanted. Dave Kong and fellow plaintiff John Messina are awaiting word from District Court to see if it will declare the auction of the Mt. Davidson cross to have been improper. Even if they win, Kong and Messina could still face the prospect of yet another battle if San Francisco officials decide to hold another ersatz "auction" rather than do what the constitution mandates -- take down the cross.

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