A U.S. District Court judge is expected to rule in the coming weeks on a lawsuit charging that the American Jewish Congress colluded with the city of San Francisco to sell a city-owned cross to an Armenian-American group.
The 103-foot cross atop Mount Davidson was auctioned off in 1997 to the Council of Armenian American Organizations of Northern California for $26,000, as part of the settlement of a 1990 lawsuit over church-state issues.
The latest suit charges that the city effectively excluded prospective buyers with intentions of dismantling the cross.
Opening arguments began Tuesday in the San Francisco courtroom of U.S. District Judge Maxine Chesney. The trial is expected to conclude this week.
John Messina, a member of American Atheists, and Dave Kong, state director for the organization, who filed the suit, are also arguing the constitutionality of the sale. If successful, they could force the city to retract the sale and hold another auction.
Testifying in the latest suit, Fred Blum, a lawyer for the American Jewish Congress and one of the attorneys in the 1990 suit, called the new allegations “incredible.”
“We never colluded with the city,” he told the Bulletin after his testimony on Tuesday. “That’s an easy one. Given all the work we put in to make the city divest itself of this cross, it seems incredible to think we would then collude with the city to help them keep it.”
Saying that he doubted the new suit would be successful, he also dismissed questions of constitutionality, saying that issue had been researched too thoroughly the first time around to leave any room for error.
The cross, which has stood at the city’s highest peak since its installation in 1934, has been at the center of a storm of public controversy for years.
In 1990, nine private citizens — including Rabbi Allen Bennett, now the spiritual leader of Alameda’s Temple Israel — filed a suit charging that by maintaining the cross on public land, the city violated the constitutional separation of church and state. The suit was backed by AJCongress, American Civil Liberties Union and Americans United for Separation of Church and State.
Finally, in August 1996, the 9th Circuit Court of Appeals concluded that maintaining the religious symbol on public property was indeed a violation, clearing the way for the sale to a private party the following year.
Scott Schutzman, attorney for American Atheists, said the city and the plaintiffs in the original lawsuit colluded to make sure the land would go to a private party that would maintain the cross.
“We maintain that the sale was improper and a ploy to keep the cross standing in the middle of a public park on San Francisco’s highest peak,” Kong said. “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.”
But Bennett called Kong’s assessment “a misperception.”
American Atheists “probably don’t understand the work that went into ensuring that all people who could bid on the property were entitled and enabled to,” he said. “Substantial effort was made over seven years to get the land out of public hands and into private hands.”
In its suit, American Atheists also charged that the city under-publicized the auction by advertising it only in the San Francisco Independent, which the group’s Web site calls “a free, throwaway local ad sheet.”
Published three times a week, the Independent won a contract to print the city’s public notices since it is free and available to all residents.
The Council of Armenian American Organizations of Northern California intends to maintain the cross as a memorial to the nearly 2 million killed earlier this century by Turkish troops in a genocide that impressed the young Adolf Hitler with its thoroughness — and virtual invisibility.
Christine Tour-Sarkissian, lawyer for the Armenian-American group, which was also named as a defendant, called the new lawsuit “ridiculous.”
“Obviously we are being harassed,” she said. “They are claiming the city rigged the sale, and that part of the suit is totally frivolous. Secondly, they are rearguing the original case. And the attorneys then found this a constitutional solution to the problem,” she said.
“For these plaintiffs, the ultimate goal is to tear down the cross. We’re an innocent party that got caught in the middle.”
Chesney has a history with the case dating back to the original lawsuit.
“This is a very topical issue, so the judge is unlikely to sit on it for long,” said Deputy City Attorney Brian Gehringer. “My guess she will rule on it in somewhere between a week and a month.”