embers and supporters of American Atheists will be gathering this coming Tuesday, June 1 at the Federal Court Building (450 Golden Gate Avenue) in San Francisco for another rally in support of legal efforts to tear down the Mt. Davidson cross. The action begins at 12 noon; demonstration organizers say that appropriate signs and banners will be provided for this peaceful event. An earlier demonstration took place last weekend, and over two-dozen supporters expressed their views. As protesters gather outside on Tuesday, though, John Messina and Dave Kong will finally be getting their day in court in what has become a prolonged First Amendment legal confrontation.

The two men are plaintiffs in a suit challenging San Francisco's historic Mt. Davidson cross, a 103-foot high steel-and-concrete religious monument which sits in the middle of the city's largest public park. Kong and Messina want the cross dismantled as a violation of the First Amendment separation of church and state. Their fight is just the latest round in a court battle which dates back nearly 18 years -- and the end may be in sight.

   Mr. Kong is California State Director for American Atheists; John Messina is a prominent west coast First Amendment activist known for his outspoken defense of the separation of church and state. For both men, the fight to dismantle the Mt. Davidson cross has pitted them against the courts, government boards, religious and civic groups and even local civil liberties and "separationist" groups.

   The cross was erected in 1934 on public lands, with public money; it quickly became the new focus for religious groups and ceremonies, including a popular Easter sunrise ecumenical service that has attracted tens of thousands of worshippers over the decades. In 1980, the American Civil Liberties Union filed the first of what would become a series of lawsuits and other legal maneuvers, and challenged the constitutionality of the city of San Francisco owning a sectarian religious monument. Government officials maintained that the structure had nothing to do with religion, but was rather a historical artifact and "war memorial." That claim seemed a bit disingenuous, though, in light of the history of the Mt. Davidson cross. Inside its foundation, for instance, was a copper box -- a time capsule -- which includes newspapers, telephone directories from the period of the dedication, two Bibles, rocks from the Garden of Gethsemane, even a jug of water reportedly from the Jordan River. At the base is a plaque inscribed with the words: "Sunrise Easter Cross/Mount Davidson/First Service 1923."

   It was in that year that the first Easter Sunrise service was held on Mt. Davidson, San Francisco's highest point. Wooden crosses were erected, then destroyed by fire over the years, or acts of vandalism. In 1932, the City of San Francisco gained title to the land and officially established the Park; one year later, the Board of Park Commissioners voted to authorize the construction of a permanent cross.

   Considerable bravado and ritual surrounded the dedication ceremony, and public officials were informed by the city attorney that all of this was perfectly legal and would pass constitutional muster. In Washington, President Franklin D. Roosevelt pressed a golden telegraph key which activated a circuit to illuminate the new cross. "Fifty-thousand people attended the event in the Park which took place on the eve of Palm Sunday in order to illuminate the Cross for Easter Weekend," noted a document from a subsequent court ruling.

   The constitutionality of the cross was affected by the 1947 ruling in EVERSON v. BOARD OF EDUCATION. That case involved a New Jersey law which authorized local boards of education to reimburse parents whose children attended local Roman Catholic schools for the cost of student transportation. In the 5-4 decision, with the majority opinion authored by Justice Hugo Black, the court upheld the practice saying that providing transportation was only incidental to any religious entanglement. But justices cited substantial historical sources authored by Jefferson, Madison and others, and warned that the state could not directly "establish" or compel financing of a sectarian religious enterprise.

"San Francisco authorities, though, rather than tear down the Mt. Davidson cross sought to 'privatize' it by selling it and .38 acres of land to a private group..."

   In CARPENTER v. CITY AND COUNTY OF SAN FRANCISCO, litigants, including some local religious leaders, challenged the city's ownership of the cross, saying that it violated the No Preference Clause of the State Constitution, and the First Amendment of the Federal Constitution. Lower court judgments were for the city, but on August 20, 1996, the Ninth Circuit Court of Appeals upheld the plaintiff's challenge. Noting that the Mt. Davidson cross conveyed "great religious significance," the court ruled that it and similar structures could not stand on government-owned land. As a result, the 57-foot high cross at Skinner's Butte in Eugene, Oregon was disassembled; a cross at Kolekole Pass in Hawaii was also taken down.

   San Francisco authorities, though, rather than tear down the Mt. Davidson cross sought to "privatize" it by selling it to a private group. Supervisor Amos Brown, also a local preacher, suggested that the city convey it to an ecumenical religious "interfaith" group for only $1. Eventually, the structure and approximately .38 acres of land on which it resided, were "auctioned" to a local Armenian cultural organization. There were numerous conditions on the "sale," and the cross and surrounding real estate was to remain open for public use.

California American Atheists State Director Dave Kong charges that attempts to "sell" the Mt. Davidson cross are a shabby ruse to circumvent the First Amendment. "San Francisco officials should do the right thing, and tear down the cross," Kong insists.

   Local religious and other groups "signed off" on the sale, as did plaintiffs in earlier court challenges; voters approved this cozy arrangement in a citywide election. Only American Atheists spoke out against the deal, accusing the city and religious organizations of "trying to do by indirect means what they know they could not do by direct means -- namely, keep the Mt. Davidson cross standing in a public park."

   Mr. Kong described the auction as fraudulent and "bogus," saying that the Mt. Davidson cross should be taken down as officials elsewhere had chosen to do with their unconstitutional religious monuments. In November, 1997, suit was filed by American Atheists with Mr. Kong and Mr. Messina as plaintiffs, asking for a preliminary injunction against the sale and transfer.

   Since then, the city has engaged in legal "hit-and-run" tactics which have included long and costly depositions, legal motions and other maneuvers. The latest was a complaint filed by the City and County of San Francisco alleging that the Atheists' suit lacked merit and was insufficient, and asking for a delay in the latest trial On May 3, 1999, U.S. District Judge Maxine M. Chesney rejected the city's argument, noting: "Defendants (City and County of San Francisco, et al.) have not shown good cause for bringing this matter by way of an expedited motion, nor have they shown good cause for the relief sought..."

    The Tuesday demonstration will commemorate the newest phase in the legal fight to remove this unconstitutional religious monument. Appropriate signs and banners will be provided; this is a great way for Atheists and other separationists to show their support for Dave Kong and John Messina.

   For updates on this demonstration, contact Mr. Kong at dksf@atheists.org, via phone at (415-771-9872), or visit the California American Atheists web site for more further information.

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