Thursday, June 27, 2002
En Banc Ninth Circuit Rejects Sale of San Diego City Land With Cross as Violation of State Constitution
By KENNETH OFGANG, Staff Writer/Appellate Courts
The sale of public land containing a 43-foot high Latin cross to a private group which is maintaining it as part of a war memorial violates the California Constitution’s prohibition against government aid to religion, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The limited en banc ruling is the second to bar San Diego’s sale of the half-acre parcel. It overturns a panel decision last August that upheld the bidding process used by the city after the panel ruled that the city’s first attempt at a sale created an illegal appearance of religious preference.
Yesterday’s 7-4 ruling continues what Judge Susan Graber called the “protracted saga” of the city, the cross, and the avowed atheist who has battled for more than a decade to have the cross removed. “Because both the constitutional infirmity and the injunction [forbidding the city from maintaining the cross on public land] remain in place, we return the case to the district court to write the next installment,” the judge wrote.
The city sold the land to the Mt. Soledad Memorial Association in 1998 after the first appellate panel ruled that the presence of the huge sectarian symbol on public land violated the California Constitution.
That sale was challenged by Philip Paulson, an educator and avowed atheist backed by the Anti-Defamation League of B’nai B’rith and the ACLU. Paulson and his attorney, James McElroy of San Diego, alleged that the bidding process leading to the 1998 sale was rigged in order to assure that the cross was not removed.
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, the district judge 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.
Graber yesterday agreed in part, saying the bidding procedures violated California’s “expansive” ban on government aid to religion.
As interpreted by the California Supreme Court, the judge said, the state Constitution bars a public entity from lending “direct, immediate, and substantial” aid to a religious point of view, even if it has a legitimate secular purpose.
The problem with the second sale, Graber said, was that if a bidder wanted a secular memorial, it would have to have enough money to outbid the field and to remove the cross, whereas the memorial association or another bidder wanting the keep the cross as part of the memorial could do so at no additional expense.
“In short, by establishing a specified use as a condition of sale (the maintenance of a war memorial) and then providing gratis the means to satisfy that condition to only those bidders who supported the preservation of the cross, the City gave a direct, immediate, and substantial economic incentive to advance a sectarian message,” the judge wrote.
Graber was joined by Chief Judge Mary M. Schroeder and Judges Harry Pregerson, Alex Kozinski, Michael Daly Hawkins, William A. Fletcher, Marsha S. Berzon.
Judge Ferdinand F. Fernandez dissented, joined by Judges Johnnie B. Rawlinson, Pamela Ann Rymer, and Thomas G. Nelson.
Fernandez incorporated the panel opinion by Judge Procter Hug Jr., who has since taken senior status and was not on the en banc court. Hug reasoned that all of the requirements laid down by the city were religiously neutral.
The appeals court however, agreed with the district judge that all of those requirements were “reasonable and logical “ and religiously neutral. Any appearance of religious preference, Hug said, could be rectified by placing signs on the property calling attention to the fact that it was the private property of the memorial association.
Fernandez argued in a footnote, similar to his dissent in yesterday’s Pledge of Allegiance case, that the state and federal constitutions only require that the government exercise neutrality in matters of religion.
The case is Paulson v. City of San Diego, 00-55406.
Copyright 2002, Metropolitan News Company