What Part of “NO” Don’t They Understand?

June 28, 1999

The peak of one of San Francisco’s highest hills is a 170-acre park, maintained in a rugged natural state with trees and tangled vines, offering a stunning view to those strong enough to make the climb.

Sitting atop that Mount Davidson peak is a 100-foot tall concrete cross, visible from much of the city. Built with city funds before most of us were born, it is labeled at its base as the “Easter Sunrise Cross.” The city has maintained it for 4 generations.

It is illegal. It is a direct violation of the Bill of Rights to the US Constitution, which states: “The government will make NO laws establishing religion.” That’s a simple law that anyone can understand, isn’t it?. Maybe not - we’ve been fighting about this for years. What part of NO don’t they understand?

A couple of years ago, a federal court ordered that the cross was illegal, and ordered San Francisco to get rid of it. Simple enough. Other cities have torn down illegal crosses, or moved them to private property, to comply with such an order.

But San Francisco took a different direction (of course - San Francisco is always different). It declared the tiny one-third acre under the cross to be surplus city property, and auctioned if off. A hastily formed Armenian quasi-religious group bought the cross, and agreed to maintain it as is. And Presto, there wasn’t a cross on a city park any more!

Atheists Dave Kong and John Messina didn’t like having their constitutional rights sold at auction to the highest religious bidder, so they boldly took action. They began a courageous court battle against The City and County of San Francisco to tear down that cross. The battle isn’t over yet.

In May, SF Atheists held a large “Tear Down the Cross” rally at the cross on Mount Davidson. As the trial began on June 1st, SF Atheists rallied again outside the Federal Courthouse.

The trial lasted more than a week. But, curiously, no verdict was reached.

Scott Schutzman skillfully argued Dave and John’s case before Judge Maxine Chesney, while defense lawyers for The City and the Armenian Council tried their best to support their own actions.

At the conclusion of the trial, Scott Schutzman summarized the sale as simply an attempt by the city to “save the cross” despite a prior court decision that it could not do so. He said the city had no secular purpose in keeping or selling the cross. He also identified the complete absence of any appraisal of the land’s value before it was offered for sale.

San Francisco’s lawyer summarized his defense by saying they “worked with all the religious groups involved, and the best constitutional lawyers in California, to make things right.” When the judge sweetly asked, “Why didn’t you just tear it down and be done with it?” he replied that “Religious groups have rights, too!”

The Armenian Council’s lawyer was backed by about 25 members of their group in the audience. She said the Armenians saw the small legal announcement in “The Independent” local newspaper, then quickly organized 27 secular and 5 religious Armenian groups into The Armenian Council to raise $24,000 to buy the cross. (How 32 diverse Balkan-War-heritage groups got organized so quickly, and agreed to spend $1000 per group to buy property only a few had ever seen and none could ever use, was not explained.) She said they only wanted the land “for its emotional value.”

Judge Maxine Chesney didn’t laugh at this, or any of the other silly arguments through the week. She did a good job of running a difficult trial.

At the end, we awaited her verdict.

Surprisingly, Judge Chesney announced that she would delay her verdict. She asked each side to submit a 25-page summary brief by June 30, and another 25-page rebuttal brief by mid-July 14, for her further review prior to issuing a verdict sometime later.

So we had a trial without a verdict.. When it finally does arrive, it may be appealed.

Dave Kong and John Messina are to be congratulated for courageously bringing this difficult suit, and staking their own personal reputations to see it through.

But it shouldn’t be this hard for our government to understand the word “NO.”

Gentleman Jim Heldberg is National Affiliation Director for American Atheists, and lives in his favorite city, by the bay.

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