Plaintiffs Dave Kong and John Messina, who were not parties to the original lawsuit, alleged the city should have been required to remove the cross entirely to satisfy constitutional requirements. Chesney disagreed, saying that no particular remedy was mandated by the 9th Circuit U.S. Court of Appeals, which ruled in 1996 that city ownership of the cross violated the No Preference Clause of the California Constitution.

The plaintiffs in the original lawsuit — including the American Jewish Congress, American Civil Liberties Union and Americans United for Separation of Church and States — supported the sale, arguing it adequately divested the city of unconstitutional church-state entanglement.

The suit was filed in 1990 by nine private citizens — including Rabbi Allen Bennett, now spiritual leader of Alameda's Temple Israel.

The cross stands 103 feet above Mount Davidson. It was commissioned by the city in 1934. The city sold the cross and .38 acres of surrounding land at auction in July 1997 for $26,000.