San Francisco officials have tried to maintain a 103-foot hig Christian cross in Mt. Davidson cross by selling it to a private group. Plaintiffs scharge that the sale was improperly conducted, and a ruse to circumvent the First Amendment.

eparationists have won a small but important victory in their larger battle to remove a giant Christian cross from middle of historic Mt. Davidson Park in San Francisco. Last week, a court ruled that the case would go forward, and dismissed a complaint filed by the City and County of San Francisco that the legal challenge lacked merit and was "insufficient." That means that plaintiffs Dave Kong and John Messina can proceed with their case, which charges among other points that the government used subterfuge in selling the cross and a sliver of property to a local Armenian cultural group in 1997.

   "The City argued that they did nothing wrong in 'auctioning' the cross and the real estate to the highest bidder," noted Mr. Kong, State Director of American Atheists. "We maintain that the sale was improper and a ploy to keep the cross standing in the middle of a public park on San Francisco's highest peak."

   The Mt. Davidson Cross, a 103-foot high concrete and steel structure, was erected in 1934. President Franklin Roosevelt was part of the dedication ceremony which took place on Easter Day; he pressed a gold telegraph key in Washington, D.C. which activated an electrical signal to floodlights at the base of the monument. For years, it became a venue for seasonal religious worship. According to the San Francisco Chronicle, the energy crisis that arose in the 1970s ended the illumination of the cross at public expense, and subsequent attempts to light up the structure during the Christmas season were stopped by threats of litigation.

   In 1990, "several individuals of various faiths" challenged the city ownership of the Mt. Davidson monument, arguing that the cross was "the preeminent symbol of Christianity," and hence a violation of the establishment clause. A lengthy legal process landed the case in the Court of Appeals which ruled against the City. In August, 1996, U.S. District Judge Diarmuid O'Scannlain wrote: "The Mt. Davidson cross carries great religious significance. Indeed, to suggest otherwise would demean this powerful religious symbol ... Thus, we conclude that (its) presence on public land violates the No Preference clause of the California Constitution.

   In March, 1997, the U.S. Supreme Court struck another blow to the Mt. Davidson cross, and similar Christian monuments in Hawaii, Oregon and elsewhere which had been constructed on public land. The justices refused to hear the appeal by San Francisco officials; that put in the city in the position of disposing of the cross.

   In Eugene, Oregon, officials removed a 37-foot high Christian cross that had been constructed in a public park known as Skinner's Butte. It was dismantled and hauled off to a local Bible college. The Hawaii cross and Kolekole Pass was taken down by the U.S. Army following a complaint from Mitch Kahle and the Hawaii Coalition for the Separation of Church and State.

   At that point the fate of the Mt. Davidson cross seemed sealed. The nation's highest court had, in effect, declared public ownership of the monument to be a constitutional violation. But no sooner had the Supreme Court's decision been announced than religious groups, government officials, and even representatives from the ACLU -- which had brought the 1990 challenge to the cross in the first place -- began discussing the virtues of finding some arrangement whereby the cross would remain standing on the Mt. Davidson. One attorney for the original plaintiffs declared, "This case (against the cross) was brought by religious leaders with great respect for religious symbols ... We have never suggested that the only response to this lawsuit is for the city to remove the cross."

   Among the proposals was to have a "coalition of religious and secular groups" purchase the cross and a small amount of the surrounding real estate, thus technically transferring ownership to a "private" party and removing the government from any First Amendment violation. A Mount Davidson Support Foundation emerged which was spearheaded by another group, Ecumenical Ministries.

   At that point, American Atheists California State Director Dave Kong spoke out, and charged that any such plan was a divisive and disingenuous scheme to keep the Mt. Davidson cross standing. "If a religious group wants to purchase the cross and put it on their own land, fine," declared Kong. "But it makes no sense to have a sliver of phony 'private' land surrounded by a public park in order to keep a religious monument which is clearly unconstitutional."

   American Atheists President Ellen Johnson also took issue with city officials. "They can't write up some sleazy sales agreement which stipulates that any new owners can only keep the land with the cross on it as a 'historical' or religious display. That's clearly favoring religion."

   From there, events concerning the cross moved fast...

   ¶    July, 1997.

    A three-page "Invitation to bid," based on guidelines from the Recreation and Parks Commission of the City of San Francisco, announced an auction for the cross and the .38 acre of land it sits on with a minimum bid of $20,000. Ellen Johnson charges that the auction is "artifice and a sham," adding, "This sale is patently ridiculous and everyone knows that the conditions are designed to make sure that only some religious group, or other organization which would keep the cross standing, ends up owning the property." Indeed, the city's Landmark Preservation Board suggests that one way to maintain the Mt. Davidson cross would be to have it proclaimed a "city landmark."

   ¶   August, 1997.

    At an auction officially advertised only in a free, throwaway local ad sheet, the Mt. Davidson cross is "sold" for $26,000 to the Council of Armenian American Organizations of Northern California. An attorney for the group informs reports that the "cross will be preserved" and the site left open to the public. Denise LaPointe, who earlier proposed the "city landmark" scheme in order to keep the cross standing in the middle of the city's largest public park, said she was "thrilled" by the sale. "This means it (the cross) will be kept for everyone."

   Mr. Kong threatens legal action, and warns that the Mt. Davidson cross sale may not pass constitutional muster. "The auction is just an effort to make an 'end run' around the First Amendment, and do by indirect means what city officials know they may not do by direct means -- keep the cross standing."

   ¶    September, 1997.

   The "sale" of the cross and .38 acres of land must still face approval by voters. A coalition of groups, including the Museum of San Francisco, the Armenian Council, American Jewish Congress, Friends of Mt. Davidson, Americans United for Separation of Church and State all announce their support for the deal and "sign off" from any objections to the cross. Mayor Willie Brown announces that these organizations and his office are "satisfied with the proposed sale."

   ¶    September 20, 1997

   American Atheists files suit in U.S. District Court for Northern California to challenges the bogus "sale" of the Mt. Davidson Christian cross and .38 acres of real estate, charging that the auction was improperly conducted and that city officials were merely seeking a way to skirt constitutional restrictions. The plaintiffs, Dave Kong and John Messina, call for an immediate injunction against the "sale, disposal and/or transfer of ownership in any manner of the real property known as the .38 Acres of Mt. Davidson park."

   Mr. Messina brings to the case a considerable volume of historical research, including a story which appeared in the April 17, 1949 edition of the San Francisco Chronicle. That and other evidence clearly establishes the cross's role not so much as a "historical" symbol but as a locus for religious ritual.

   ¶    November, 1997

    Voters approve the auction of the Mt. Davidson cross after the court refuses to grant an injunction against the sale. The original suit persists, though, and plaintiffs Kong and Messina argue that the auction was improperly conducted. The City and County of San Francisco responds by denying negligence, and saying that the complaint is not sufficient to argue for any subterfuge by officials. By doing so, the City and County hope to derail any challenge to the constitutionality of having a "private" cross on .38 acres of real estate in the middle of a public park.

   While the latest decision against San Francisco officials is a welcome one, Mr. Kong and Mr. Messina still have a long, rough road ahead. "The objective is to have the city 'do the right thing,' which is what they should have done in the first place," said Kong. "They should have followed the example of Oregon and Hawaii, and simply dismantled the Christian cross, and not be a party to using government to advertise religious belief."

   Dave Kong also cited the recalcitrance of the City and County in doing everything possible to ignore the question of constitutionality. He noted a constant round of depositions by government attorneys asking about his finances, sexual orientation and other matters that have little or nothing to do with the First Amendment. One part of his deposition concerned whether or not he was Jewish.

   So what's the status of the Mt. Davidson cross? The religious monument, all 107-feet of it still stands in the middle of Mt. Davidson Park, although the owners of the structure and the surrounding .38 acre is a "private" Armenian organization. City and County officials, along with certain civil liberties and separationist groups approve of this arrangement, seeing nothing unconstitutional or disingenuous about it, or the process which resulted in this shabby state of affairs. To date, Mr. Kong and Mr. Messina have spent considerable time on the case. The recent court ruling, while welcome, is only a small step forward in what may prove to be a long, long journey.

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