Judge Rules Cross in Public Park Unconstitutional

SAN FRANCISCO (CN) – A 20-foot, electrically-illuminated cross that has stood in a public park in Albany, California for nearly five decades is unconstitutional and must be removed or the land sold, a federal judge ruled Friday.

Concluding the cross violates the establishment clause of the First Amendment, U.S. District Judge William Alsup in San Francisco said Albany must take down the cross by imposing zoning restrictions banning religious symbols on public property or taking possession of an easement on the property. Otherwise, it must sell the land to a private owner, who could choose to keep it intact.

“Those of the Christian faith may dislike some conclusions in this order,” Alsup wrote. “If the tables were turned, however, and a Star of David or Star and Crescent instead blazed from the top of Albany Hill, how would they feel?,” he continued. “The undersigned judge is confident that the fair-minded will see the problem. Please remember that religious faith is precious in our country, a most personal and individual choice. Our governments have no business sponsoring one or the other. That is the law under our First Amendment.”

The ruling is a win for the Bay Area city, despite the constitutional finding against it. Albany had asked for a court order in November 2017 to remove the cross, after the Lions Club sued it for conspiring with local group East Bay Atheists to remove it.

The group had begun criticizing the cross in 2015, protesting at Albany City Hall for its removal and dedicating a portion of its website to documenting purported safety code violations. The following year, municipal officials had Pacific Gas & Electric cut power to the cross for over three months due to safety and fire hazards.

The Lions Club claimed the shutdown was part of a harassment campaign to force removal of the cross.

Illuminated every Christmas and Easter season since 1971, the cross was erected by the Lions Club in 1971 on 1.1 acres of land owned by Albany residents Ruth and Hubert Call.

Albany subsequently acquired title to the property from a developer in exchange for approval of the developer’s high-rise condominium project nearby, with plans to turn it into a park.

The developer had bought the property from Hubert Call for $258,000, who had obtained an easement and conveyed it to the Lions Club. As part of the deal, Call, a member of both the Lions Club and the Albany City Council, insisted the cross remain intact and the easement used to access and maintain it.

In finding Friday that the cross violates the establishment clause, Alsup cited the test set down in the 1971 Supreme Court ruling Lemon v. Kurtzman. The test asks in part whether the religious practice or symbol at issue has a “primary effect that neither advances nor inhibits religion.” Alsup concluded that the primary effect of the Albany cross is to advance religion.

He also cited the Ninth Circuit’s 2004 decision in Buono v. Norton, which held that the display of a cross on public land endorsed religion.

The Lions Club had argued that Buono didn’t apply to its case because it is a private entity that built and maintains the cross and owns the easement.

But Alsup countered that private entities don’t preclude establishment clause claims when the land becomes public.

Instead, he said, the test is whether a “reasonable observer” would perceive government endorsement of religion. He found that a reasonable observer of the Albany cross would perceive such an endorsement.

“The city’s establishment of a public park featuring a large cross projects an appearance of governmental preference for the Christian religion,” he wrote. “The reasonable observer would be aware that the cross stands on city parkland, it celebrates Christian holy days, and the city has supported this religious activity for decades.”

The Lion’s Club had also argued the easement is a private parcel precluding First Amendment liability, an argument also shot down by Alsup.

“The easement is not a separate parcel, much less a separate coherent parcel,” he concluded. “Contrary to counsel, we cannot treat the easement as if it were a condominium hovering over and separate from the land itself. Were that the case, then municipalities could grant religious easements with abandon and avoid First Amendment liability.”

Alsup denied the Lions Club’s motion for summary judgment on its free speech, free exercise, equal protection, due process, interference with easement and takings clause claims, and its request for punitive damages.

He granted summary judgment on its nuisance, trespass and quiet title claims.

Robert Nichols in El Cerrito represents the Lions Club, and Gregory Fox with Bertrand, Fox, Elliot, Osman & Wenzel in San Francisco represents Albany. Neither returned requests for comment Friday.

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