Federal judge upholds San Francisco’s sale of park containing cross

Tuesday, January 11, 2000

San Francisco’s sale of a piece of public land containing a large concrete-and-steel Latin cross to a private entity did not subvert the separation of church and state, a federal judge has ruled.

In 1990, several residents sued San Francisco in federal court, arguing that by owning and maintaining a cross at Mount Davidson Park, the city was violating the Constitution.

The cross, which at 103 feet tall is a familiar part of the San Francisco skyline, was erected by the city in 1934. In late 1996, the 9th U.S. Circuit Court of Appeals upheld a lower federal court decision that said the city’s ownership and maintenance of the cross did amount to an improper government endorsement of religion.

To comply with the 9th Circuit decision, the city sold the parcel of land containing the cross to the Council of Armenian American Organizations, a northern California nonprofit group. The group said it would maintain the cross as a memorial to Armenians who died under the rule of the Ottoman Empire. Voters approved the sale in 1997.

Shortly after the sale was approved, David Kong, director of California’s American Atheists chapter, sued the city and the Armenian organization. Kong argued that the sale was a sham and that the continued presence of the cross violated church-state separation.

U.S. District Judge Maxine M. Chesney ruled on Jan. 3 that the cross may remain atop Mount Davidson and that the sale was constitutional.

In her 14-page opinion, Chesney noted that the San Francisco situation differed from a case involving the sale of land beneath the Mount Soledad Cross in San Diego.

In 1998, U.S. District Judge Gordon Thompson said San Diego’s attempts to split the park and let a private group maintain the plot with the cross was a ploy that still violated the separation of church and state. Unlike in the San Diego situation, Chesney said San Francisco officials did not improperly try to affect the sale of the land. Moreover, Chesney said San Francisco placed large signs in the park identifying the cross as being on private property.

“In particular, the Court finds the sale to be neutral,” Chesney wrote in Kong and Messina v. The City and County of San Francisco. “Further, the primary effect of the conveyance neither advanced nor inhibited religion. By use of an open auction process, the City left the decision as to the fate of the Cross to the ultimate purchaser.”

Kong said he would ask the 9th Circuit to overturn Chesney’s ruling.

“I’ve always felt that this case was so controversial that we would have to reach the 9th Circuit in order to win,” Kong said in a prepared statement. “I think that Judge Chesney ignored a lot of the evidence we gathered to show how city leaders were really involved in trying to save the cross.”

City attorney Louise Renne, in a prepared statement, lauded Chesney’s decision and said it was the city’s intention to “divest ourselves of the cross.”