Thursday, August 23, 2001
Ninth Circuit Upholds Sale of San Diego City Land With Huge Cross
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 doesn’t violate the constitutional prohibition against establishment of religion, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
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, Judge Procter Hug Jr. wrote for the court.
The victory for the city could put an end to a 10-year legal battle over the Mt. Soledad cross. The city sold the land to the Mt. Soledad Memorial Association in 1998 after a previous 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.
It’s not clear whether the fight is over. McElroy said a decision will be made within the next few days whether to take the matter further
“I feel like we won the war,” he told the MetNews, because “the city got the message [it] can’t be in the business of promoting Christianity over other religions.” What the court dealt with yesterday were important, but less significant “cleanup issues,” he explained.
While he continues to believe that the city failed to “divest itself of the property in a manner that is constitutionally permissible,” he commented, serious thought needs to be given to whether it is time to declare victory and end the litigation.
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.
The appeals court however, agreed with the district judge that all of those requirements were religiously neutral.
It was “reasonable and logical,” Hug said, 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.
The retention of the right to reject bids, the judge went on to note, is a standard practice in San Diego. Even if the city had used that power here, Hug reasoned, it would not be exercising “unfettered” discretion, because all bid rejections require an evaluative process subject to judicial review.
The judge went on to reject the contention that because the property is surrounded by a public park, and because the large cross would be plainly visible to passersby unaware of the private ownership of the land, the continued presence of the cross constitutes a religious preference.
Hug noted that plans for the site call for the placement of a number of signs calling attention to the fact that it is the private property of the memorial association.
“This enhanced demarcation of the site as private property rectifies any potential appearance of preference for religion,” the judge wrote. “While it is conceivable that an observer from a significant distance could mistake the cross as being part of the public park, once that person reached the memorial site they would quickly recognize that the cross sits on private property.”
Besides, the judge said, the fact that the land is now private means the association has free-exercise and free speech rights that would be violated if it were forced to remove the cross.
Hug was joined by Fifth Circuit Senior Judge John M. Due Jr., sitting by designation, and by Judge Richard C. Tallman.
The case is Paulson v. City of San Diego, 00-55406.
Copyright 2001, Metropolitan News Company