Jewish groups hailing court ruling against the Mount Davidson cross

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Jewish groups are hailing this week's federal appeals court ruling that the cross atop San Francisco's publicly owned Mount Davidson violates the separation of church and state.

"What it says is that the city cannot be a party to advocates on behalf of one religion even if this religion happens to be the religion of most of the people in the city," said Fred Blum, the attorney representing the American Jewish Congress, a plaintiff in the case.

The AJCongress, American Civil Liberties Union, Americans United for the Separation of Church and State and private citizens of various faiths joined in 1990 to sue the city and county of San Francisco and the county Recreation and Park Commission. The Anti-Defamation League filed a friend-of-the-court brief.

Plaintiffs claimed the presence of the 103-foot concrete cross on city-owned land violates the federal and state constitutional separation of church and state and demanded the city either sell the property to private owners or remove the symbol.

The city, however, argued that the cross is a San Francisco landmark akin to the Golden Gate Bridge, popular with people of all faiths. There is no evidence a "reasonable observer" would view it as an endorsement of Christianity, the city said.

That argument irked some of the Jewish plaintiffs.

"The worst part of the city argument was that the cross represented San Francisco," Blum said. "What it told me is I cannot be a San Franciscan, because a Latin cross could never represent me."

This week, a three-judge appeals court panel overturned a 1992 district court ruling in favor of the city, agreeing with the plaintiffs that the religious content of the cross cannot be denied and that its presence violated the state's no-preference clause.

"The Mount Davidson cross carries great religious significance," Judge Diarmuid O'Scannlain wrote for the court. "Indeed, to suggest otherwise would be demean this powerful religious symbol."

In deeming city ownership of the cross unconstitutional, the court also cited the absence of other religious symbols near the cross and the cross' lack of historical significance.

"The cross does not become imbued with the mountain's history merely because it was erected upon it," the court's argument reads. "Mount Davidson will retain its historical significance with or without a cross atop it."

The free-standing cross has stood atop Mount Davidson above West Portal since 1934, when it was purchased with taxpayer money. The symbol got a highly visible introduction when President Franklin Delano Roosevelt pressed a gold telegraph key in Washington, D.C., sending an electrical impulse that turned on floodlights at its base.

Illumination of the cross ended during the energy crisis of the 1970s and it has not been lit since. In the 1980s, threatened lawsuits stopped efforts to revive that tradition during religious holidays.

Today a copper box inside the foundation of the cross contains news clippings, phone books, Bibles, two rocks from the Garden of Gethsemane and a jug of Jordan River water.

At this point, the fate of the cross remains unclear. The city has said it plans to ask a full 9th Circuit Court of Appeals to review the case and then, if necessary, to take the case to the Supreme Court.

Since such an appeal process could take months, or even years, to complete, it is likely to be some time before the city is forced to take any concrete steps to sell or remove the cross.

Nonetheless, those opposed to city ownership of the symbol are taking time to stop and bask in what they see as a major victory.

"We're gratified that the court upheld the principal of the separation of church and state," said Barbara Bergen, ADL's regional director.

"We consider it fundamental to the protection of both majority and minority rights."

Leslie Katz
Leslie Katz

Leslie Katz is the former culture editor at CNET and a former J. staff writer. Follow her on Twitter @lesatnews.