SAN DIEGO — The city crossed the line separating church and state when it sold a 43-foot-tall cross to a memorial association, a federal court ruled Wednesday.
The 9th U.S. Circuit Court of Appeals found the city of San Diego rigged the sale of the cross on a city-owned war memorial at Mount Soledad so that only groups wanting to keep the cross could buy it.
The 7-4 decision that the sale violated the California Constitution reversed a three-judge 9th Circuit panel, which in August approved the sale of the cross.
The appeals court released the ruling on the same day that it declared that reciting the Pledge of Allegiance in public schools is unconstitutional because it contains the words “under God.” (See stories on page 10)
The cross controversy arose more than a decade ago, when a federal judge ruled the city was violating the Constitution by owning land with a Christian symbol.
Acting on a lawsuit from Vietnam veteran Philip Paulson, the judge ordered the city to sell the cross. Paulson, a San Diego atheist who objected to using the Christian symbol as part of a war memorial, accused the city of violating the constitutional separation of church and state.
The cross sits inside the 170-acre Mount Soledad Natural Park on a hillside overlooking the city’s upscale La Jolla neighborhood. Paulson and opponents have asserted that the city’s sale of the cross and a tiny piece of the park created an illegal endorsement of religion. Supporters said the towering white cross is now a memorial to war veterans.
In 1998, the city sold the cross and a half-acre of surrounding land for $106,000 to the nonprofit Mount Soledad Memorial Association, the highest bidder and the same agency that has maintained the cross since 1952 when it was city owned.
Paulson and his attorneys claimed that the bidding process for the land was flawed, charging that the city’s requirements for the purchase tended to favor the memorial association or others with plans to retain the cross.
Paulson on Wednesday directed questions to the American Civil Liberties Union.
“The deck was stacked in favor of preserving the cross from the very beginning,” said one of Paulson’s lawyers, Jordan Budd of ACLU. “It is past time for the city to quit evading its constitutional duty and end its entanglement with the Soledad cross.
The appellate court sent the case back to San Diego and left it to the parties involved and a federal judge to remedy the violations of the state’s Constitution.
San Diego City Attorney Casey Gwinn said the appellate court based its decision on an area of California Constitution that the ACLU didn’t raise at a hearing in March. Gwinn said the city was mulling a possible appeal to the U.S. Supreme Court.
“This case has been ongoing for the past 13 years,” he said. “It’s not likely to end anytime soon.”
San Diego voters in 1992 passed Proposition F, which allowed the sale of the city property. The city initially sold the cross and 222 square feet of land to the memorial association. But a federal judge ruled that the sale required a bidding process and that more land had to be sold.
The city then began accepting bids from nonprofit organizations for the cross and a half-acre parcel on the condition that any symbol could be used as long as it honored war veterans.