Removing a Sectarian Symbol
from Mt. Soledad Public Park

Government Displaying Discrimination and Prejudice

By Philip Paulson, plaintiff
Paulson v. City of San Diego

The spectacular panoramic vistas greeting visitors to San Diego, California, include two prominently placed Christian crosses, one atop Mt. Soledad in the City of San Diego, the other atop Mt. Helix which can be viewed outside the City of La Mesa in San Diego County. When I moved to the City of San Diego in 1978, I drove up to Mt. Soledad and Mt. Helix to confirm what my eyes were telling me from miles away. I asked myself, What is it? Where is it? I vowed to remove the unmistakable symbols of the Christian religion from those public lands.

Howard Kreisner and I, plaintiffs and Atheists, filed suit against the City of San Diego on

 

May 31, 1989.

 

We challenged the permanent presence of their 43 foot "Easter Cross", located at the apex of the Mt. Soledad Public Park, a 170 acre park owned and maintained by the City of San Diego. The Society of Separationists (SOS), affiliated with American Atheists of Austin, Texas, was also listed as plaintiffs to the original complaint.

We were joined a year later by the American Civil Liberties Union, who sued the City of La Mesa and the County of San Diego. The City of La Mesa, until they removed the Christian religious symbol, had an image of the Mt. Helix cross on its official emblem. This emblem appeared on La Mesa city letterheads, public buildings, and police and animal control vehicles and shoulder patches. The La Mesa cross plaintiff was James Ellis, an Episcopalian. The Mt. Helix cross plaintiff was Patrick Murphy, a Roman Catholic.


On December 3, 1991, Gordon Thompson, Jr., a judge for the US Southern District of California, reviewed and bundled the three separately filed cases into one case, and granted a Summary Judgment:

 

"forbidding the permanent presence of each cross on the public property or imprimatur where it currently appears."
 
The Judge further granted the three municipal defendants three months "within which to comply with its order." The court did not state what actions the three defendant municipalities must do to comply with the injunction. The court held that "the economic expense of removing the cross, of rendering non-public the property on which the cross stands or of otherwise attempting to cure the present infirmity may not bear on the constitutional challenge presently before this court."

Judge Thompson noted that the crosses were permanently positioned inside public parks and were maintained at taxpayers' expense. He also noted that they violate

 

Article 1, Section 4 of the California State Constitution, which is known as the "No Preference" Clause. The "No Preference" Clause guarantees the "free exercise and enjoyment of religion without discrimination or preference."

Although, the suits allege both federal and state constitutional violations, he relied solely on the California Constitution for his summary judgment. So, Judge Thompson gave the City of San Diego 30 days to remove the cross.


On February 24, 1992, during litigation, the City Council of San Diego voted to authorize the sale of a 15-foot square parcel of land underneath the Mt. Soledad Cross to a pre-selected buyer, the Mt. Soledad Memorial Association for $14,500. "Proposition F" ballot pamphlet was printed without public notification, containing the names and titles of four City Council members and the Mayor. Printed in their official capacity, the City Council stated their reason for a "Yes" vote,

 

"Please, Save the Cross."

On June 2, 1992, the voters authorized the land transfer in a sweetheart deal to the pre-selected Christian advocacy group named the Mt. Soledad Memorial Association with assurances of no open bidding,


After the sham sale, the City of San Diego filed an appeal on March 23, 1993. We, the plaintiffs, argued in the US 9th Circuit Court of Appeals that both the authorized and completed transfers violated the state and federal constitutions and constituted a bad faith and illegal end-run around the District Courtís order. The City urged us to resolve the issues by yielding to their majority vote on Prop F, which they assumed had the legal weight and authority over the constitution. We declined to do so.

Circuit Court Judges Thomas Tang, Mary Schroeder and Robert Beezer affirmed District Court Judge Thompsonís Summary Judgment. The 9th Circuit Appellate Court Judges held that

 

"highly visible, religiously significant Easter crosses, erected in public parks owned and maintained by local government, in the absence of any symbols of other religions, and without any independent historical significance, violated the No Preference Clause of the California constitution."

Not satisfied with Tang, Schroeder and Beezerís Appellate ruling, the City and County of San Diego petitioned and were granted a Hearing En Banc, which is a vote by the entire 28 judges of the 9th circuit court. Again, they lost by an unanimous vote by all 28 judges.


On October 10, 1994, the City and County of San Diego then petitioned the US Supreme Court with a Writ of Certiorari in their desperate attempt to brief in opposition to the ruling. Again, the City of San Diego lost, this time was their last appeal. Thus, Judge Thompsonís Summary Judgment effects the 9th Circuit Court of Appeals jurisdictional areas, comprised of Western United States and the Pacific Islands.


On October 16, 1996, Judge Thompson called a Hearing to determine whether the city and county had properly remedied their constitutional violations. But Judge Thompson announced, for the first time, that he wanted briefs from the two non-profit organizations that now have title to the tiny parcels of property. The Mt. Soledad Memorial Association holds title to a small parcel of land at the apex of the Mt. Soledad Public Park. The San Diego Historical Society holds title to a small parcel of land at the apex of the Mt. Helix Public Park. He ordered the City of San Diego, Mt. Soledad Memorial Association and the plaintiffs to meet with Federal Magistrate Louisa Porter for the purposes of additional discovery. Judge Thompson scheduled January 8 , 1996 to review the Magistrates findings and decide how to proceed. But when, the scheduled court date arrived, it was later learned that Judge Thompson had encountered a serious medical condition, a cardiac infarction. So, the constitutional remedy phase of the case was on an indefinite hold until which time Judge Thompson was physically fit to serve the court.


On September 18, 1997, Judge Thompson ruled that both the negotiated sale of the cross site to the Mt. Soledad Memorial Association and the size for the plot sold to the Mt. Soledad Memorial Association violated two separate provisions of the California Constitution. Judge Thompson wrote, that

"it is the exclusion of any other purchasers of or bidders for the land that gives the appearance of preferring the Christian religion that the California Constitution forbids."

 

Judge Thompson also wrote that "the Cityís attempt to comply with this Courtís order by selling only a small portion of the land underneath the Mt. Soledad cross still shows a preference or aid to the Christian religion."

Judge Thompson added, "Both the method of sale and the amount of land sold underneath the Mt. Soledad cross do not cure the constitutional infirmities outlined in this Courtís previous Order." He was referring to his December 3, 1991 order stating "a permanent injunction forbidding the permanent presence" of the Mt. Soledad cross on public property.

At this time of writing, Howard Kreisner, the original co-plaintiff, moved out of State and had empowered me to represent our interests in this case. During the last eight years, Peter Irons, my appellate attorney, had provided brilliant and able legal assistance throughout the long and arduous court battles. He is still by my side in this valiant battle to defend and support the Constitution.

On September 18, 1997 Judge Thompson ruled that "both the negotiated sale and the amount of land sold underneath the Mt. Soledad cross do not cure the constitutional infirmities outlined in this Courtís previous Order." Judge Thompson wrote that "the Cityís attempt to comply with his Courtís order by selling only a small portion of the land underneath the Mt. Soledad cross still shows a preference or aid to the Christian religion." So, Judge Thompson again gave the City of San Diego another 30 days to remove the cross.


On September 30, 1997, I appeared at Public Comment before the San Diego City Council. I stated then, "I do not want to see the cross on Mt. Soledad defaced, demolished, or desecrated. I do not want the cross removed. But rather I want the cross moved from the Mt. Soledad Public Park to the Mt. Soledad Presbyterian Church."


On October 16, 1997 and November 13, 1997 Peter Irons and I met with San Diego City Attorney Casey Gwinn at the City Attorneyís conference room to mediate this dispute. Each time Gwinn attempted to focus the discussion on the sale of additional park land to the Mt. Soledad Memorial Association. The City Attorney insists that the Mt. Soledad Memorial Association owns the cross and the 15 foot by 15 foot land underneath it. Each time we insisted that any discussions about land sale must be deferred after an attempt had been made to relocate the cross to private property. Particularly, the nearby Mt. Soledad Presbyterian Church was a feasible choice. We have given the City Attorney until November 28, 1997 to seek the cross relocation by conferring with the clergyman and congregation of the Mt. Soledad Presbyterian Church, whether they would accept this gift from the City. Retaining Mt. Soledad Nature Park as public property, according to the 1916 original deed, was dedicated to the public "in perpetuity."


On October 18, 1997, Anthony Shanley, deputy city attorney, filed a Notice of Appeal with the 9th Circuit Court of Appeals. Couple days prior to the February 4, 1998 filing deadline, the City filed a Motion to Dismiss the Appeal in the 9th Circuit Court.

The City now claims that the Mt. Soledad Memorial Association the cross and the land underneath it must be bought back. We will argue that Judge Thompsonís recent September 18th order reinstates his original December 3, 1991 Order to remove the Cross from public land, once the city holds title to that small parcel of land containing the Easter cross. Judge Thompson ruled that the city of San Diego cannot sell land with the option of moving the cross. No matter how much land they plan to sell, they are in violation of Judge Thompsonís order. The Mt. Soledad Memorial Association land sale was not religiously neutral, and did not satisfy the constitutional infirmity.

I left the San Diego City Attorneyís conference room with the following analogy. I told the City Attorney, "If I placed a turtle on top of this conference table and hit it behind the head 44 times, would you suspect that the turtle would stick his head inside the shell." I added, "The City of San Diego had 44 Federal Judges to unanimously rule against them. Count them! Add them up! Are they going to stick their heads out of the shell again?"

District Court Judge Gordon Thompson's Clerk called me to inform me that the Court Hearing scheduled in Court Room 1, US District Court in San Diego for 9:30 a.m., Monday, February 9, 1998, had been rescheduled or "continued" for March 9, 1998.

Deputy San Diego City Attorney Anthony Shanley filed a unilateral Motion for Dismissal of Appeal with the 9th Circuit Court of Appeals. The 9th Circuit was awaiting their scheduling set up date for appellate action. The 9th Circuit still had the case. After the 9th Circuit Appellate clerks received the City's unilateral Notice of Dismissal of Appeal, then they sent it back to the District Court for Judge Thompson's review. At which time, Judge Thompson will be making his momentuous decision regarding my filed Motion for a More Definite Order during the new scheduled Hearing date of March 9, 1998.

During the March 9, 1998 Hearing, I will argue then at the Hearing:

1). The City's inaction had created an impasse that requires a more definite order.

2). The City's intention to proceed with a "restructured" land sale fails to satisfy any of the court's orders in this case.

3). The Court's order of September 19, 1997, voided the City's land sale to the Mt. Soledad Memorial Association.

4). The City's intention to "Restructure" the land sale would create an unconstitutional "religious servitude," which violates the "no preference" clause of the California Constitution. The City now proposes to sell at public auction a plot of land that entirely surrounds another plot that the City claims was privately owned. No purchaser of any larger plot could remove the "Easter Cross" or enjoy free use of the smaller plot on which the "Easter Cross" sits.

5). The sale of additional parkland would create an unlawful easement under California law.

6). Any "Restructured" sale of parkland must be preceded by removal of the "Easter Cross."

7). Any parkland offered for sale must be available for residential construction, according to its single-family residential zoned use.

The San Diego City Council has been desperately fighting a relentless battle to keep their Christian religious symbol still standing at the apex of Mt. Soledad Public Park. Their new strategy was to buy back the land contained inside the iron fence, where their 43 foot "Easter Cross" is positioned. Therefore, they would own the Cross of Jesus, a sectarian symbol, in violation of Judge Thompson's order. Then, they plan on a restructured sale and hope the Judge will rule favorably on their behalf to permit the "Easter Cross" to remain there. It should be reiterated, that this federal case had been in the US Courts since May 31, 1989, and a total of 44 federal judges have unanimously agreed that religious symbols on government land is unconstitutional.


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