Friday, February 8, 2002
En Banc Ninth Circuit to Decide Legality of Sale of Land With Cross
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals said yesterday it will decide en banc whether the sale of public land containing a 43-foot high Latin cross to a private group constitutes an unconstitutional religious preference.
“I’m pleasantly surprised,” San Diego attorney James E. McElroy told the MetNews. “These things don’t get granted very often.”
McElroy represents Philip Paulson, an educator and avowed atheist backed by the Anti-Defamation League of B’nai B’rith and the ACLU. Paulson, who originally sued pro se, has been fighting a 12-year battle with the city over the Mt. Soledad cross.
Paulson and McElroy sought further review after a three-judge panel ruled last August that the 1998 sale to the Mt. Soledad Memorial Association eliminated what a prior panel held to be an apparent public preference for the Christian faith.
The earlier panel said the presence of the huge sectarian symbol on public land violated the California Constitution.
Judge Procter Hug Jr., the author of last year’s opinion, said the sale of the half-acre parcel “through a publicized and open bidding process” was “sufficient to cure the constitutionally impermissible appearance of preference for religion” that resulted from the city’s previous ownership of the land.
McElroy contends that the preference still exists because the bidding process leading to the 1998 sale was rigged in order to assure that the cross was not removed. The association is maintaining the cross as part of a war memorial.
San Diego City Attorney Casey G. Gwinn said he welcomed the opportunity to argue to a larger panel, and predicted that whichever side lost would petition the U.S. Supreme Court to hear the case.
While the panel decided the case on the basis of a state constitutional issue—ancillary to Paulson’s Establishment Clause challenge to the presence of the cross when the land was owned by the city—Gwinn said there was a “very valid” federal question as to whether removal of the cross would violate the Mt. Soledad association’s right to free exercise of religion.
“There’s a very definite tension between the California Constitution’s no- preference clause and the Free Exercise Clause of the First Amendment,” Gwinn commented.
The presence of crosses on the site has a long history, dating back to 1913. The memorial association erected the present cross on the then-public land, with the city’s permission, and dedicated it as a veteran’s memorial in 1954.
A previous cross on the site was destroyed in a storm in 1952.
The presence of the cross on publicly owned land was declared to be an establishment of religion by U.S. District Judge Gordon Thompson Jr. of the Southern District of California in 1991, and the Ninth Circuit affirmed two years later. The city then attempted to satisfy the ruling by selling 222 square feet of land beneath the cross to the association at fair market value, with no request for bids and with an understanding that the cross would remain.
In 1997, Thompson ruled that the sale of such a small amount of land, without competitive bidding, to a group which expressly intended to maintain a religious symbol on it was unconstitutional. That ruling led to the 1998 sale, at which the association acquired the land for $106,000.
The city received four other bids—$100,000 from Horizon Christian Fellowship; $65,000 from the National League for Separation of Church and State; and $25,000 from the Freedom from Religion Foundation.
A Catholic group said it would be willing to pay $5,000 over the highest sealed bidder, but the city attorney said that was not a valid bid.
Paulson specifically challenged requirements that the property be used for a war memorial and that the bidders have experience in maintaining such memorials. He also objected to the city’s refusal to sell a larger parcel of land—the available parcel was about 15 percent of the property the city owned at the site—and its reservation of the right to reject the highest bid.
Hug, however, said it was “reasonable and logical” for the city to insist that the property continue to be maintained as a war memorial—a longstanding use with broad public support—and that the buyer be experienced in maintaining such a memorial.
Copyright 2002, Metropolitan News Company