The Conspiracy (National Lawyers Guild, San Francisco Bay Area Chapter), Spring 1992, page 1
A coalition of civil liberties groups, led by Americans United for Separation of Church and State, has lost the first round in a legal challenge to government ownership and maintenance of a 103-foot-tall Latin cross, the largest in the United States, atop San Francisco's highest peak. U.S. District Judge John P. Vukasin, Jr. granted the government defendants' motion for summary judgment in Carpenter v. City & County of San Francisco on January 16, 1992. The plaintiffs, who also had moved for summary judgment, will appeal the decision to the United States Court of Appeals for the Ninth Circuit.
If the decision were upheld on appeal, it would be the first federal case in which a Latin cross placed permanently on government-owned property has been held not to constitute a government endorsement of Christianity in violation of the Establishment Clause of the First Amendment. It also conflicts with a December 3, 1991 decision by U.S. District Judge Gordon Thompson, Jr. in Murphy v. Bilbray, which held that two Latin crosses in public parks in San Diego County (and a depiction of one of those crosses on a city emblem) violated the California Constitution. Although the plaintiffs in Carpenter relied on Murphy and the facts of the two cases were strikingly similar, Judge Vukasin did not mention Murphy in his oral ruling.
Before announcing his ruling, Judge Vukasin, a Reagan appointee, made it clear that he is unhappy with current First Amendment law. Apparently referring to recent United States Supreme Court decisions that have held flag burning to be protected speech, the judge stated, "I find it distressing that I am part of a legal system that appears to say that it is not a violation of the Constitution to burn the American flag, but it would be a violation of that same Constitution to have a cross or arguably a crescent or Star of David on public land. Sometimes I feel we have veered from the path of logic and common sense." Judge Vukasin also found it "ironic" that in "this city, which not only tolerates but appears to embrace literally almost any activity or conduct, we are suddenly arguing we cannot have one kind of religious symbol."
Much of Judge Vukasin's oral ruling consisted of quotations from Justice Anthony Kennedy's opinion for four justices in County of Allegheny v. ACLU, a 1989 case in which Justice Kennedy dissented from the Supreme Court's holding that a temporary display of a creche in a government building violated the Establishment Clause. Judge Vukasin stated the question before him as "whether the Mt. Davidson cross, given its particular physical setting, has the effect of promoting or endorsing religious beliefs." He held that it did not. The court appeared to accept the defendants' argument that the Mt. Davidson cross is "nearly devoid of religious content" because of its setting and history. According to the defendants, a public opinion poll taken at taxpayers' expense showed that most San Franciscans regard the cross as a landmark rather than a religious symbol. Deputy City Attorney Mara Rosales, who argued for the defendants at the hearing, denied that the towering cross sends a message to non-Christians that they are outsiders. "If the City was truly broadcasting that message," Ms. Rosales told Judge Vukasin, "we're not doing a very good job of it because it doesn't seem that much people or many people are getting the message." She also claimed that most San Franciscans do not "connect" the cross with city government.
Ms. Rosales argued that the City has a "secular purpose" for owning the cross in that it is "a work of art." It was irrelevant, she contended, that Easter sunrise services are held at the cross every year. "I do not think that plaintiffs would argue that because religious services are held at the Holocaust memorial that, therefore, that structure has religious significance and that, therefore, the City should either sell it, destroy it, or alter it, because that is evidence of a nonsecular purpose for maintaining that memorial."
NLG national vice-president Thomas Steel of San Francisco's Steel, Clarence & Buckley, who took on the case for Americans United and argued for the plaintiffs at the hearing, pointed out that the Ninth Circuit's 1991 decision in Hewitt v. Joyner rejected the argument that artistic merit excuses government ownership of a religious display. In that case, the court held that the California Constitution prohibited the County of San Bernardino from owning a park filled with statues depicting scenes from the New Testament. The Hewitt opinion stated that the California Constitution requires stricter church-state separation than does the Establishment Clause of the First Amendment to the United States Constitution. Judge Vukasin ignored Hewitt at the hearing, and he barely mentioned California constitutional law.
The defendants submitted a half-hour videotape, shot and edited at taxpayers' expense, purporting to show that the cross is not visible from much of the City. Although most of the videotape had been shot several months earlier, the City's attorneys submitted it to the court with their reply papers, the week before the hearing, depriving the plaintiffs of an opportunity to demonstrate that the cross is not only in plain view but impossible to avoid seeing for many San Franciscans.
Mr. Steel pointed out that, in Hewitt, the statues "weren't visible at all until you went out to the desert to the desert park and went in to look at them." Nevertheless, Judge Vukasin found it important that the cross "is in a relatively remote place that you have to go to specifically if you want to get there." He cited the alleged fact that "this cross is only partially visible and, most importantly, is not on, in or near City Hall" as a reason to distinguish this case from Fox v. City of Los Angeles, a 1978 case in which the California Supreme Court held that the California Constitution prohibited lighting a Latin cross on city hall during Christmas and Easter.
In what Judge Vukasin called "a very moving presentation," Ms. Rosales described her personal history as a native San Franciscan and the significance of the Mt. Davidson cross to her family. "Generations of San Franciscans like myself have grown up knowing that the Mt. Davidson cross is a familiar site on the San Francisco landscape," she said. "It is a symbol of San Francisco, and I think, and I really do believe this, Your Honor, that it is a symbol which is special and belongs to each one of us, not because we are Jews, not because we are Christians, or Muslims, or atheists, or Buddhists or agnostics; it is special to us because we are San Franciscans. It is part of our heritage."
Mr. Steel responded that "the cross is not a symbol of San Francisco. We live in a pluralistic city. . . . We read through the City brief and we see a stirring conclusion, and we hear it here in their argument, that the cross is a symbol of all San Francisco. That is the kind of argument that really inflicts the harm that the Establishment Clause was designed to protect against. It disenfranchises those members of our community here in San Francisco for whom the cross is not a religious symbol, for whom the cross represents somebody else's set of beliefs. It tells them that they are outsiders to the political community, that they are less powerful, less favored."
Plaintiffs in the case include Victor Carpenter, a Unitarian minister; Ronald Nakasone, a Buddhist priest; James Lowder, a Baptist preacher; Rabbi Allen Bennett, executive director of American Jewish Congress for the Northern Pacific Region; Albert Walker, a member of Americans United's Board of Trustees and president of AU's San Francisco Bay Area Chapter; Molleen Matsumura, a member of AU's National Advisory Council and of the Chapter's Steering Committee and a leader of the Northern California Council of Humanist Organizations; and others. The late Philip Mass, a humanist counselor and member of the Steering Committee, also was a plaintiff. In addition to Mr. Steel, the plaintiffs are represented by Margaret Crosby, staff counsel for the American Civil Liberties Union of Northern California; and Fred Blum of Jaffe, Trutanich, Scatena & Blum, who volunteers for the American Jewish Congress.
Defendants are the city government; the Recreation and Park Commission, which has authority over the cross and the Mt. Davidson Park in which it sits; and Mary Burns, general manager of the Recreation and Park Department. Aside from Ms. Rosales, the defendants are represented by San Francisco City Attorney Louise Renne and by Deputy City Attorneys Dennis Aftergut, Burk Delventhal and Arthur Greenberg.
Judge Vukasin took over the case in July of 1991 after Judge Stanley A. Weigel, to whom the case originally was assigned, disqualified himself, stating that his past contributions to the Jewish Federation created an appearance of conflict of interest because the American Jewish Congress, one of the organizations sponsoring the case, receives money from the Jewish Federation.
Martin Kassman is a San Francisco attorney and vice-president of the San Francisco Bay Area Chapter of Americans United for Separation of Church and State.
© Martin Kassman 1992