federal judge has ruled that the 103-foot Christian cross atop San Francisco's Mt. Davidson may remain following the city's sale of the monument and a small portion of surrounding land to a private group.

   Supported by American Atheists, Dave Kong and John Messina had gone to court in hopes of voiding the sale, claiming that it was "rigged" and designed to keep the cross standing in direct violation of the California and federal constitutions.

   In a 14-page decision, Judge Maxine Chesney found in favor of the defendants -- the City and County of San Francisco, the Parks and Recreation Commission, and the Council of Armenian American Organizations of Northern California, which had been the successful bidder on the cross and 1/3 acre of real estate during a 1997 auction.

   The council obtained the structure for $26,000, and now uses it to commemorate Turkey's massacre of Armenians in the 19109s and early 1920s.

   Plaintiffs' attorney Scott Schutzman had argued that by keeping the cross standing in the middle of a public park, San Francisco officials were violating numerous laws including the No Preference Clause of the state constitution. That statute prohibits the government from favoring one religious denomination or belief over another. They also maintained that the sale of the cross and real estate had been a "sham," with the auction poorly advertised and rigged to discourage any group that might be successful from possibly dismantling the cross. In that case, the land would have reverted back to the City and County of San Francisco.

   "This is an attempted end-run around the establishment clause of the Constitution," declared Dave Kong, California State Director of American Atheists when the case was first filed. "The government is just trying to find a way -- any way -- of keeping the Mt. Davidson cross standing in the middle of a public park."

   In 1932, the City of San Francisco gained title to approximately 40 acres of wooded land on top of the area's highest point, Mt. Davidson. The city commissioned the building of the monument the following year. In 1934, the Mt. Davidson cross -- 103-feet high and 39-feet across -- was completed. President Franklin Roosevelt was part of the Easter Sunday dedication ceremony; from his office in Washington, FDR pressed a gold telegraph key which activated an electrical signal to floodlights at the base of the Mt. Davidson cross. A special vault was sealed within the cross. Inside was a copper box which included newspapers, telephone directories from that period, two Bibles, rocks said to be from the Garden of Gethsemane, and even a jug of water reportedly from the Jordan River."

   The top of Mt. Davidson soon became a focus for Easter Sunday sunrise services, and the cross was often illuminated at public expense during the Easter and Christmas seasonal holidays.

   In 1990, CARPENTER v. CITY & COUNTY OF SAN FRANCISCO was filed, and challenged the city's role in erecting, maintaining and owning a clearly sectarian religious monument. A district court gave a summary judgment in favor of the city, but in August, 1996 the Ninth Circuit Court of Appeals reversed that decision.

   Because of the Ninth Circuit ruling, a cross in Eugene, Oregon which stood on public land was quickly dismantled. The ruling also provided an impetus for the removal of a similar enormous Christian cross which had been built at Kolekole Pass in Hawaii on a United States army base. It, too, ended up being dismantled. The City and County of San Francisco, though, attempted to comply with the Ninth Circuit ruling by disposing of the cross and approximately one-third-of-an-acre of land on which it stood by "selling" it to a private group. This arrangement was agreed to by the principals in the CARPENTER case, which included representatives of the American Civil Liberties Union, American Jewish Committee and the Americans United for the Separation of Church and State, and the City and County of San Francisco. Those groups "signed off" through their agreement with San Francisco, endorsing the idea of selling the cross and land -- in the middle of a public park -- to the highest bidder.

   An attorney for the original plaintiffs in

declared, "This case (against the cross) was brought by religious leaders with great respect for religious symbols ... We have never suggested that the only response to this lawsuit is for the city to remove the cross..."

   Only American Atheists spoke out against this questionable, even cozy arrangement.

   "It was just a technical ruse," charged Ellen Johnson, President of American Atheists. "The City and County are going to 'privatize' a couple of thousand square feet of public land, an enormous steel-and-concrete Christian cross, and require all kinds of exemptions and stipulations, and then have the audacity to say that this is not a cheap scheme to get around the First Amendment? The cross should just be taken down..."

   In March, 1997, San Jose atheist and First Amendment activist John Messina contacted the San Francisco Mayor's Office, expressing interest in purchasing the land and cross. Already, select community groups -- including one which receives public funding -- began to announce their efforts to possibly buy and maintain the cross as a cultural icon or "historical" monument. When it became apparent that someone might actually purchase the real estate and remove the cross, the City and County began inventing stipulations and conditions for any sale, including the ultimate proviso -- that the Board of Supervisors and the electorate would have to approve any final bid.

   Other groups entered the fray in support of keeping the cross on Mt. Davidson. One proposal was for a "coalition of religious and secular groups" to purchase the structure and land. A local minister with political connections suggested that the Mt. Davidson monument be turned over to his organization for the sum of $1. An outfit called Ecumenical Ministries also expressed interest in obtaining the cross and land.

    California American Atheists State Director spoke out against the disingenuous "auction" of the land and cross.

   "If a religious group wants to purchase the cross and put it on their own land, fine. But it makes no sense to have a sliver of phony 'private' land surrounded by a public park in order to keep a religious monument which is clearly unconstitutional," Kong declared.

   In August, 1997, the Mt. Davidson cross and land was "sold" to the Council of Armenian American Organizations of Northern California for $26,000. Religious and civic officials were pleased with themselves. Denise LaPointe, affiliated with the local preservation board, gushed that she was "thrilled," and told local media: "This means it (the cross) will be kept for everyone!"

   The "sale" was approved by the Board of Supervisors shortly after the questionable auction. In September of 1997, supported by American Atheists, Dave Kong and John Messina filed suit in U.S. District Court. They called for an immediate injunction against the "sale, disposal and/or transfer of ownership in any manner..." of the Mt. Davidson cross and site. City voters approved the sale, though, in November, 1997.

   Trial in the case began at the end of last May. For Dave Kong and John Messina, there were seemingly endless depositions with city/county attorneys wasting time and generating reams of paperwork, along with legal motions and requests that the case be dismissed on technicalities and lack of merit. Officials argued that the cross was "not a religious monument." Judge Maxine Chesney, though, allowed the case to proceed.

   Beginning with the decision in CARPENTER, it became obvious that the Mt. Davidson cross violated federal and state constitutional restrictions pertaining to the establishment of religion. A five-point test had been used in a 1993 case, ELLIS v. CITY OF LA MESA; this considered factors such as the religious significance of the display; the size and visibility of the display; the inclusion of other religious symbols; the historical background of the display; and the proximity of the display to government or religious facilities. In CARPENTER, the court ruled that four of the five standards had been violated by the city and county, and thus the Mt. Davidson cross violated the No Preference Clause. Even so, the original plaintiffs in CARPENTER had "signed off" on strategies which had the effect of keeping the enormous Christian monument standing in the middle of the Mt. Davidson park.

   The decision in CARPENTER unfortunately did not establish how the constitutional violation was to be corrected. Officials in Oregon had simply taken down the 57-foot high cross that had stood in the Skinner's Butte section of a public park.

   "The issue thus presented," wrote Judge Chesney, "is whether the particular transfer in question passes constitutional muster."

   Despite the actions and words of many public officials, Chesney opined that "there was no campaign to 'save' the Mt. Davidson Cross" and that "there is no statement by the City to that effect." Incredibly, this is contradicted by public record, and the fact that officials went to considerable lengths to add stipulations to the sale of the cross and land that were clearly designed to keep the Mt. Davidson cross in place.

   Chesney also approved of the "prequalification requirements" for those bidding on the cross, and the city's advertising of the sale in an obscure paper known for its abundance of legal notices.

   Another crucial portion of this week's decision pertained to "the nature and size of the parcel of land..." In MURPHY v. BILBRAY (1997), the City of San Diego had "for all practical purposes, jig-sawed around the base of the Mt. Soledad Cross and sold the cross to the city's preferred buyer," wrote Chesney. She claimed that in the San Francisco case, however, "the City has conveyed a more sizable piece of land" that was theoretically "usable" for various purposes. She praised the fact that the Armenian Council ("a nonprofit secular corporation" comprised of representatives of thirty-two ... groups) was utilizing the cross and land as a "memorial."

   Finally, she applauded the fact that there are disclaimer plaques on the trail up Mt. Davidson which purportedly inform the public that the cross and land "is privately owned and maintained."

   Dave Kong said that while he was disappointed in today's ruling, Judge Chesney's decision was not surprising.

   "I've always felt that this case was so controversial that we would have to reach the 9th Circuit in order to win," Kong told AANEWS. "I think that Judge Chesney ignored a lot of the evidence we gathered to show how city leaders were really involved with trying to 'save the cross.""

   Kong noted that Denise LaPointe had served on the Landmark Commission, and that San Francisco Mayor Willie Brown had used his official letterhead and political position to raise funds in hopes of salvaging the Mt. Davidson monument.

   Mr.Kong also revealed that one of the original defendants in CARPENTER had suggested that he was disappointed with the negotiated settlement that allowed the cross to remain standing in the middle of a public park. "All of a sudden, though, he bailed out on us and didn't want anything more to do with the case." Kong refused to speculate whether the involvement of atheists in the case was a factor in this sudden shift of attitude.

   John Messina was also disappointed in the decision. He, too, cited the involvement of officials like Willie Brown and Denise LaPointe in trying to "save the cross," and said that Judge Chesney contradicted herself in the decision. Messina quoted one section of the ruling where "The court accepts the explanation" for a delay from the city in response to his offer to bid on the cross.

   "There was no explanation," said Messina. "The Mayor's secretary simply did not explain why there were delays or why she did not respond in a timely fashion to my orignal correspondence."

   Kong, Messina and American Atheists have announced that the case will be appealed to the 9th U.S. Circuit Court.

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