San Diego County must sell portions of park surrounding Latin cross, judge rules

Monday, October 5, 1998

A towering Latin cross perched atop one of San Diego's highest hills can remain, but the county land surrounding it must be sold to a private entity to avoid violating the separation of church and state, a federal judge has ordered.

The cross and surrounding land, known as Mt. Helix park, were obtained by San Diego County in 1929. It was not until the late '80s that anyone challenged the display of the 36-foot cross on public land. The American Civil Liberties Union of San Diego, representing taxpayers, sued the county, arguing that the cross atop Mt. Helix in the middle of a county-owned park violated the First Amendment's prohibition of state-established religion.

In 1991, U.S. District Judge Gordon Thompson agreed with the ACLU. He ruled that Latin crosses are universally recognized as symbols of Christianity and cannot lawfully stand on public land. Thompson ordered the county to cease maintaining the cross at Mt. Helix. The county appealed Thompson's ruling to the 9th U.S. Circuit Court of Appeals. In 1993, the appeals court upheld Thompson's decision. In doing so, the appeals court rejected several arguments proffered by county officials, such as that the cross had become secularized and was not displayed before an “explicit government edifice.”

The appeals court concluded, in part, that “the size and religious significance of the cross, along with the lack of other religious symbols or independent historical significance, creates an appearance of religious preference. This is so despite the cross' distance from city hall.”

While the case was on appeal, San Diego County transferred a portion of the land on which the cross sits to a nonprofit organization in hopes of satisfying Thompson's order to stop maintaining the cross. The county kept the surrounding land, which includes an amphitheater.

Late last week, however, Thompson rejected the county's splitting of the park in two and ordered the county to end its ownership of the surrounding property.

“The proposed split of property would still give the appearance of impermissible religious preference by the County,” Thompson wrote. “With the proposed split, the presence of the cross still overshadows the amphitheater, which would be entrusted to the County. Even with a fence between the two properties, it would be difficult to recognize that the County owned one piece of the Mt. Helix park and GMIA (a nonprofit group called the Grossmont-Mt. Helix Improvement Association) owned the section that exhibited the cross.”

Jordan Budd, managing attorney for the ACLU of San Diego, said that the county must now follow the judge's order and look for a private entity to take over the portions of the park surrounding the cross.

“The county tried to evade the court order by splitting the Mt. Helix park in two,” he said. “Judge Thompson ruled that the entire park has to be transferred out of county control. This case has never been about removing the cross, but about getting the county out of the business of maintaining a park dominated by a religious symbol.”

San Diego County Supervisor Dianne Jacob also praised the judge's order, noting that the cross did not have to be removed from the land. Jacob added that the county would “find a private trustee” to control the remaining portions of the park.