San Francisco's Cross To Bear

As the winter holidays approach, the large Latin cross on San Francisco's Mount Davidson is once again in the news. Last year's sale to an Armenian group terminated lengthy litigation which had alleged the city was favoring Christianity, but now two atheists have filed suit claiming that sale was a sham.¹ They want the cross torn down because they believe it violates the First Amendment, which prohibits any law "respecting the establishment of religion, or prohibiting the free exercise thereof."

The cross was erected in 1934 as a public monument and work of art and was dedicated by President Franklin Roosevelt. In prior litigation, a U.S. district court held that the cross did not violate the Establishment Clause or the California Constitution's No Preference Clause, which states: "Free exercise and enjoyment of religion without discrimination or preference are guaranteed. ... The Legislature shall make no law respecting an establishment of religion."² The 9th Circuit Court of Appeals did not rule directly on the First Amendment question, but held that the cross violated California's No Preference Clause.³

On the same day, the 9th Circuit also held that a similar Latin cross on Skinner's Butte in Eugene, Ore., violated the First Amendment's Establishment Clause.⁴ That cross had been dedicated as a war memorial, and like the Mt. Davidson cross, was not adjacent to government buildings. Still the court of appeals held that "the city of Eugene has breached the wall of separation between church and state." That court was apparently relying on outdated Establishment Clause doctrine.

Some older U.S. Supreme Court decisions spoke of the strict separation between church and state advocated by Thomas Jefferson,⁵ but more recent cases have devised tests to determine whether a government is actually endorsing religion.⁶ Even more recently the court has held that generally applicable state laws which burden religious "free exercise" are constitutional,⁷ but laws which target specific religious sects are not.⁸ The actual holdings in these cases are elusive, because the majority justices support the judgment for different reasons, and dissenters allude to slightly different facts which might change their vote.⁹

Recent Supreme Court Decisions

In Lynch v. Donnelly¹⁰ the Supreme Court held that a crèche, contained in a large holiday exhibit which also featured a live Santa Claus, reindeer, elves, a wishing well and a banner reading "Seasons Greetings," set up in a private park by the city of Pawtucket, R.I. in conjunction with its merchants' association, did not violate the Establishment Clause. Chief Justice Warren Burger's opinion for the court acknowledged the Jeffersonian "wall of separation between church and state," but called it a "metaphor ... not ... wholly accurate [in describing] the practical aspects of the relationship that in fact exists between church and state."

That opinion concluded: "To forbid the use of this one passive symbol--the crèche--at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and legislatures open sessions with prayers by paid chaplains would be a stilted over-reaction contrary to our history."

The chief justice was referring to the fact that the first Congress, which passed the First Amendment, also passed a federal law providing for salaried chaplains for the House of Representatives and Senate. Congress has also passed laws which created the national motto "In God We Trust" appearing on our currency and placing the language "One nation under God" in our pledge of allegiance. Even lawyers who are admitted to practice before the U.S. Supreme Court are given certificates which refer to the year of their admission as "the year of our Lord."

That first Congress also passed a resolution asking President George Washington to make a Thanksgiving Day proclamation setting aside a day "to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all good that was, that is, or that will be."¹¹ Washington and most of his successors have given such proclamations, but Thomas Jefferson did not. He believed that "fasting and prayer are religious exercises," and that "every religious society has the right to determine for itself the times for these exercises."¹² Justice William Brennan and three other dissenters in Lynch sided with Jefferson in believing that, because the crèche is "a mystical recreation of an event that lies at the heart of Christian faith," the Christmas display was unconstitutional.

Their reliance on Jefferson's interpretation of the First Amendment is misplaced because he was not one of the men who actually framed that Amendment. At the time, he was in France as the United States' minister to that country. Those who were actually present during those deliberations and debates espoused an establishment clause which was designed to prevent the establishment of a national religion, but did not require complete government neutrality in respect to religion.

Five years after Lynch, the Supreme Court decided a case involving two different holiday displays on public property in Pittsburgh, Penn. This time, in five different opinions, the court held that one of the displays was constitutional and the other was not. In County of Allegheny v. American Civil Liberties Union,¹³ the court found a crèche placed on the grand staircase of the county courthouse by a Roman Catholic group to be a violation of the Establishment Clause, but also found that an 18-foot-high Chanukah menorah placed beside a sign commemorating "liberty and our legacy of freedom" and a 45-foot Christmas tree was constitutional. Justice Harry Blackmun's opinion, with which two different groups of four justices partially agreed, held: "Whether the key word is 'endorsement,' 'favoritism,' or 'promotion,' the essential principle remains the same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from 'making adherence to a religion relevant in any way to a person's standing in the political community.'"

He held that the stand-alone crèche violated the Establishment Clause because "nothing in the context of the display detracts from the crèche's religious message," and because "no viewer could reasonable think that it occupies [its prominent location on the county courthouse's grand staircase] without the support and approval of the government." Justice Sandra Day O'Connor provided the fifth vote for that majority, drawing a distinction between this crèche displayed by a government in a public building, and the one in Lynch, which had been displayed in a private park.

The Chanukah menorah survived the constitutional challenge because Blackmun found in the opinion that the menorah's message is not exclusively religious, and it stood next to a sign saluting liberty and a Christmas tree. He concluded that these Christian and Jewish symbols "simply recognize that both Christmas and Chanukah are part of the same winter-holiday season: [F]or purposes of the Establishment Clause, the city's overall display must be understood as conveying the city's secular recognition of different traditions for celebrating the winter-holiday season."

Four justices dissented from the holding that the stand-alone crèche violated the Establishment Clause stating: "If Congress and the state legislatures do not run afoul of the Establishment Clause when they begin each day with a state-sponsored prayer for divine guidance offered by a chaplain whose salary is paid at government expense, [we] cannot comprehend how a menorah or a crèche, displayed in the limited context of the holiday season, can be invalid."

Three justices dissented from the holding that the menorah next to the Christmas tree did not violate the Establishment Clause: "The menorah is indisputably a religious symbol, used ritually in a celebration that has deep religious significance. That, in [our] view, is all that need be said. ... [We] cannot, in short, accept the effort to transform an emblem of religious faith into the innocuous "symbol for a holiday that ... has both religious and secular dimensions."

Six years after deciding Allegheny County, the Supreme Court decided Capitol Square v. Pinette¹⁴ in which it held that the state of Ohio must allow the Ku Klux Klan to place an unattended cross, accompanied by a sign identifying it as belonging to the Klan, on the statehouse plaza during Christmas season, even though the state believed that such a display would violate the Establishment Clause. The court found that the Klan's cross was constitutionally protected speech.

In a portion of the opinion joined by four justices, they found that the cross, which was located in close proximity to the state capitol, did not suggest endorsement of religion by the state, and that "it is no violation [of the Establishment Clause] for government to enact neutral policies that happen to benefit religion."

Finding favoritism inappropriate in the state's granting of applications for private use of capitol square, these justices concluded: "There is a critical difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect."

Three other justices found, on the particular facts of the case, that a "reasonable observer would not interpret the State's tolerance of the Klan's private religious display ... as an endorsement of religion." They also found that the denial of the Klan's application was not a "narrowly tailored response," and that it "appear[ed] to take a position on questions of religious belief." Two justices dissented, citing the "wall of separation between church and State" in concluding that the cross on public property violated the Establishment Clause.

San Francisco's Cross

Viewing the 9th Circuit's decisions on the Mt. Davidson and Skinner's Butte crosses in light of these Supreme Court opinions, it appears that the court of appeals attached too much significance to Jefferson's wall of separation between church and state. Although the San Francisco case was decided under the California Constitution's No Preference Clause, that provision has been interpreted by using the U.S. Supreme Court's Establishment Clause analysis as a touchstone.¹⁵

The district court had found that San Francisco "possessed a legitimate, secular purpose for constructing the Mount Davidson Cross in 1934," although it noted that the construction occurred before the U.S. Supreme Court held that the First Amendment religion clauses were applicable to the states through the 14th Amendment. Analyzing the circumstances surrounding that cross, the district court found that it passed constitutional muster under the Supreme Court's Establishment Clause test enunciated in Allegheny. Indeed, the district court found that, in response to the plaintiffs' concerns, the city has refrained from illuminating the cross, and that it is not even visible from most of the city.

Even in those locations where it is visible, the cross is dwarfed by the Mt. Sutro television tower, which is more than nine times taller. Nevertheless, the court of appeals reversed, apparently ignoring an earlier 9th Circuit opinion, decided under California's No Preference Clause, which supported the district court.¹⁶

In both the Mt. Davidson and Skinner's Butte cases the court of appeals concluded that the crosses improperly endorsed religion,¹⁷ and in the Oregon case, that "the City of Eugene has impermissibly breached the First Amendment's 'wall of separation' between church and state." In a concurring opinion, one of the judges suggested that the parties to the litigation might solve the constitutional problems by, either having the city sell the land under the cross to a private party, or removing the cross to a privately owned site. The majority criticized him for making those suggestions, but last year the parties in the San Francisco case agreed to the city's sale of the land under the Mount Davidson cross to a private group.¹⁸

As a result, Easter sunrise services were once again held there, with Mayor Willie Brown and other city officials in attendance.¹⁹ In Eugene, pursuant to the federal court's order, the offending cross was removed to a nearby religious college, after a gunman held workmen at bay for more than three hours in a last ditch effort to prevent the move.²⁰ Now two atheists want the Mt. Davidson cross to suffer the same fate because they say it interferes with their enjoyment of the park which surround the cross.²¹

But a Metaphor

The U.S. Supreme Court has described Thomas Jefferson's wall of separation between church and state as "but a metaphor," and Capitol Square suggests that the current majority will give state and local governments wide latitude to allow religious displays on public property. This is consistent with the court's emphasis in First Amendment cases on granting state and local governments more freedom from constitutional decisions of federal judges.²² As Justice William O. Douglas wrote: "We are a religious people whose institutions presuppose a Supreme Being;"²³ and as long as state and federal legislatures have paid chaplains open their sessions with a prayer, it is hard to understand how an unattended cross in a public park offends the First Amendment.²⁴

Notes

1. Ken Garcia, "Unholy Battle Over Cross on Mt. Davidson," San Francisco Chronicle, May 25, 1999.
2. See, Carpenter v. City and County of San Francisco, 803 F. Supp. 337 N.D. Cal. 1992.
3. Carpenter v. City and County of San Francisco, 93 F. 3d 627 9th Cir. 1996.
4. Separation of Church and State Committee v. City of Eugene, 93 F. 3d 617 9th Cir. 1996.
5. See, e.g. Everson v. Board of Education, 330 U.S. 1 1947; Reynolds v. United States, 98 U.S. 145 1879.
6. See, e.g. Lemon v. Kurtzman, 403 U.S. 602 1971.
7. Employment Div. Etc. v. Smith, 494 U.S. 872 1990.
8. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 1993.
9. See, id. Opinions of Kennedy, J., Scalia, J., Souter, J. and Blackmun, J.; County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 1989 five different opinions.
10. 465 U.S. 668 1984.
11. Wallace v. Jaffree, 472 U.S. 38, 101-102 1985 Rehnquist, J. dissenting, citing, 1 Richardson, Messages and Papers of the Presidents 64 1897.
12. Id. at 103, citing, 11 Writings of Thomas Jefferson 429 A. Lipscomb ed. 1904.
13. 492 U.S. 573 1989.
14. 515 U.S. 753 1995.
15. Carpenter, 93 F. 3d at 629 n.7. The federal Establishment Clause was first held to apply to the States fourteen years after the Mt. Davidson cross was erected. See, Everson v. Board of Education, 330 U.S. 1 1947.
16. See, Ellis v. City of La Mesa, 990 F. 2d 1518, 1526 n.5 9th Cir. 1993.
17. City of Eugene, 93 F. 3d at 619; Carpenter, 93 F. 3d at 632.
18. Edward W. Lempinen, "Armenians to Dedicate Cross on Mt. Davidson," San Francisco Chronicle, April 24, 1998.
19. Laura Hamburg, "See Easter Sunrise Atop Mount Davidson: Service First Since Cross Was Saved," San Francisco Chronicle, April 13, 1998.
20. Gunman Defending Cross Surrenders to Police, The Seattle Times, June 12, 1997 at B2.
21. Garcia, San Francisco Chronicle, May 25, 1999.
22. Employment Div., etc. v. Smith, 494 U.S. 872 (1990)
23. Zorach v. Clauson, 343 U.S. 306, 313 1952. He went on to state: "We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma." Id.
24. See, Allegheny, 492 U.S. at 665 Kennedy, J. dissenting.