San Diego Ends Nine-Year Effort To Keep Christian Cross in a Public Park

September 3, 1999 12:00 am

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SAN DIEGO–After nearly a decade and reviews by more than 30 federal judges, the County of San Diego has finally conceded defeat in its effort to mount a Christian cross in a public park, the American Civil Liberties Union of San Diego and Imperial Counties said today.

The ACLU and the County Counsel are now negotiating an agreement under which the County will resign as trustee of the entire trust property on which the cross sits and ask Judge Gordon Thompson to appoint the nonprofit (and nongovernmental) Foundation for the Preservation of Mount Helix Nature Theater as successor trustee in the County’s place. The County is also expected to agree not to provide funding or support to the Foundation to maintain the cross site.

After an exhaustive analysis of the proposed transaction, ACLU attorneys said they are satisfied that the Foundation was offered no financial inducement by the County to take over the trust established by the Yawkey family in 1929 to honor family matriarch Mary Carpenter Yawkey.

“Assuming nothing new comes to light to indicate that the County is attempting through the back door to keep the cross property in its control, we are satisfied that the transfer meets the requirements of the court order that the County get out of the business of maintaining a religious symbol,” said ACLU President Charles Bird.

Although the agreement would have to be formally approved by the Board of Supervisors, the transfer has been arranged in close consultation with Supervisor Dianne Jacob, who represents the Mount Helix area. Up to now, Jacob has been an ardent proponent of keeping as much of the trust property surrounding the cross as possible under County auspices. In anticipation of the final approval of the transfer, the Foundation will hold a celebration at the cross site this coming weekend.

“It has taken the County nine years to acknowledge what most Americans learn in high school civics class Ñ that there should be a true wall of separation between church and state,” said Bird.

“The County’s divestiture of the Mount Helix cross and the entire park surrounding it is a decisive victory for religious freedom,” he added. “Visitors to Mount Helix will no longer be confronted with a towering religious symbol in the middle of a public park. Instead, this religious symbol and the surrounding trust property will be in wholly private hands, exactly where the founders of our nation intended religion to be,” says Bird.

The case, Murphy v. Bilbray, was filed in federal court by the ACLU in 1990, along with a companion case, Ellis v. City of La Mesa, which challenged the use of the Mt. Helix cross on official City of La Mesa insignia on police badges, stationery, and police cars. Both cases asserted that the public use and support of this religious symbol violated the “No Preference” clause of the California constitution.

In December, 1991, Judge Thompson agreed with the ACLU’s position, as did the Ninth Circuit Court of Appeals in 1993.

The City of La Mesa immediately complied with the court’s order to remove the cross from City insignia. In contrast, the County of San Diego continued to defy the court for another six years, at tremendous cost to taxpayers. The County petitioned the Ninth Circuit to re-hear the case and also attempted to get the U.S. Supreme Court to review the matter. Both courts voted down the request, leaving Thompson’s ruling intact.

While the case was on appeal, the County transferred a tiny circle of land under the cross to the San Diego Historical Society in a ploy similar to one used by the City of San Diego in an attempt to save the cross on public land atop Mount Soledad.

After Judge Thompson threw out the City’s evasive maneuver, the County proposed to save the Helix cross by splitting the County-owned park in two and giving the half with the cross to a private organization. Judge Thompson also rejected this scheme as unconstitutional last September because it would “still give the appearance of impermissible religious preference by the County” since the cross would continue to overshadow public park lands. Judge Thompson stated that the entire park would have to be transferred out of County control in order for the County to meet its constitutional obligations. With this transfer, the County will finally comply with the court’s order and the California and United States Constitutions.

The ACLU’s previous release on the case can be found at /news/n092898a.html.

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