By Donald H. Harrison

SAN DIEGO, Calif. — It is not surprising that some people don't understand the difference between a large Christian cross standing atop a public mountain top, expressly for all to see, and an eruv strung so discreetly around a neighborhood that most people would never be aware that it is there.

The reason that it is not surprising is because the constitutional doctrine of "separation of church and state" may perhaps be one of the most misunderstood doctrines in our society.  It's a doctrine that calls out for explication.  I can't think of a topic better suited for study by a mixed religious-secular commission.  

Such a panel should include representatives of the various faith groups, as well as representatives of the humanists, along with First Amendment scholars, political philosophers and thoughtful, disinterested members of the public. It should invite presentations by anyone who desires to address the issue, then it should deliberate and try to reach consensus on what is in the best interest of the public.  Finally, it should  issue a report containing proposed guidelines as to what violates the doctrine and what does  not.

I think such a panel could be formed right here in San Diego. With the rich talent in our universities, with the diversity of religious and humanistic groups, and with the long history our city has had trying to grapple with these issues, such a group could provide a public service not only for our city but for the nation as a whole. 

If the commission goes about its business seriously, while keeping before itself the goal of finding a policy that implements the true spirit of the First Amendment, its recommendations could become a standard for the rest of the nation.   Is there a philanthropist out there who would like to fund such a commission?

* * *
Let us assume that such a commission were in existence, and that it had asked for people interested in the matter to submit written testimony.  What would any of us say as we considered the meaning these words in the First Amendment to the U.S. Constitution should have in our life: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."  We should keep in mind that with the 14th Amendment, the Constitution made not only Congress but the States as well liable to the same prohibition. 

The latest controversies in San Diego have focused on the cross and the eruv, but within the recent past I have heard people raise the doctrine in relation to a half dozen local issues. They assert or question whether  the separation of church and state doctrine may or may not require 1) San Diego to change its name; 2) the removal of religious symbols from all public places, even the frescoes in Balboa Park showing Father Junipero Serra celebrating the first mass in San Diego; 3) the relocation of the  former Temple Beth Israel from county-owned  Heritage Park; 4) the elimination of religious symbols from gravestones in publicly-owned cemeteries; 5) the prohibition of religious ceremonies and displays in public parks; 6) the prohibition of prayer at the beginning of public meetings.

As we go through these questions, we need to ask, what is the difference between government "establishing a religion" and "prohibiting the free exercise thereof?" Of course, the U.S. Supreme Court has handed down many decisions over the last two centuries regarding this question, but one gets the idea that the law is in flux—that perhaps it depends not so much on immutable principles but upon which side of the question can win the votes of five of the nine U.S. Supreme Court justices.

So, let's try on our own to differentiate one case from another.  I will offer some thoughts as a jumping off point for this discussion, and if anyone would like to agree, or disagree, please feel free to send your thoughts for posting to me at sdheritage@cox.net.  If ever such a commission is established, we'll ship all the opinions over to its members for them to consider.  

I suspect that if we have a serious discussion, you, the reader, and I might be persuaded to change our opinions on some of these issues. The only ground rules I would suggest is that there be no name-calling, and that everyone credit everyone else with good intentions. So, in the spirit of rational inquiry, I offer these thoughts as tentative formulations.

1.  The Mount Soledad Cross—Because this cross is intended to be seen from miles around and because it sits on public land, it violates the doctrine prohibiting the "establishment" of a religion.  Clearly the message that the cross sends is that Christianity is the preferred religion.  If the cross were on private land—as the ones on Battle Mountain and Mountain and Mount Helix are—no constitutional question would arise. 

2.  The eruv—Until Congregation Adat Yeshurun successfully applied this month (September) for San Diego City Council's permission to string an eruv around La Jolla, very few people were aware that a similar eruv has been in place in the San Diego State University area to accommodate worshipers at Beth Jacob Congregation and the College-area Chabad.  The intention of stringing an eruv is not to proclaim Judaism as a triumphal religion, but rather to permit Sabbath-observant Jews to symbolically expand the boundaries of their homes.  That enables them on Friday nights and Saturdays to carry packages, or push their babies in strollers—activities that the rest of us (non-Orthodox Jews and non-Jews) are able to do without such a device.  I think of the eruv as a public accommodation similar to a wheelchair ramp; it facilitates the movement of some people who otherwise could not get around, but does not inconvenience any one else. Nor does the erection of the eruv require public expenditure. It seems to me that denying people the opportunity to create a nearly invisible boundary line at no cost or disadvantage to the public would have been an instance of the government prohibiting the free exercise of religion.

3.  San Diego's name—San Diego was named in 1602 by the Spanish explorer Sebastian Vizcaino in accordance with the custom of naming places claimed by Spain after the saint whose feast day is closest to the day on which the claim is staked.  Ironically, the place had been named as "San Miguel" in 1542 by the explorer Juan Rodriguez Cabrillo, but Vizcaino said he did not recognize the bay as the one Cabrillo had described.  Today, San Diego uses the name Vizcaino gave to it, but marks the date of  its "discovery" by Europeans as 1542. Of course, Kumeyaay Indians had "discovered" this area long before either of these Spanish explorers, and had lived here peacefully for countless centuries.  Up and down the California coast, Spanish explorers similarly honored numerous Catholic saints.  San Diego (or Saint Didicus, in English) was a physician credited with all-but-miraculously curing a member of the Spanish royal family; today, our area is home to numerous biomedical research institutes, including the Salk Institute, founded by polio vaccine discoverer Jonas Salk. What a nice tie in!  The name "San Diego" predated the U.S. Constitution by nearly two centuries.  The city itself was established in 1769, two decades before the U.S. Constitution was adopted, and nearly 77 years before California came under U.S. jurisdiction.  The name "San Diego" therefore was established by long usage and nothing should preclude the continued usage of this inherited name. 

4.  Removal of all religious symbols from public places—If you look carefully at the frescoes in Balboa Park you will see some depicting Father Junipero Serra celebrating the first mass in San Diego, the act that formally established our city as a Spanish settlement.  Furthermore, if you were to visit Presidio Park, where that mass occurred, you would find a cross fashioned from materials from that original mission-and-fort site.  These are examples of San Diego marking its pre- constitutional history; the removal of these symbols would deprive San Diegans of self-knowledge.  Neither the Serra Cross nor the frescoes depicting Father Serra send a message proclaiming Christianity far and wide; rather they are site-specific representations of the actual history of this period.  Furthermore, signage at the Serra Cross make its context clear.  Likewise, the statue in Presidio Park of a padre is historically appropriate to its place.

5.  Removal of Temple Beth Israel from Heritage Park—Preservationists moved the first sanctuary of Congregation Beth Israel from its original home at Second and Beech Street to publicly-owned Heritage Park in the Old Town San Diego area.  The 1889 building features stained-glass Stars of David on its windows.  Above its roofline is a representation of the twin tablets that bore the Ten Commandments. Inside is an empty Aron Kodesh (Holy Ark) and suspended from the ceiling is a Ner Tamid (Eternal Light). The structure is rented by the county government to anyone who cares to use it as a venue for speeches, meetings or religious ceremonies.  Standing in the preeminent spot of Heritage Park, the old temple is part of a community of structures celebrating Victorian architecture, but is the only one of a religious nature.  In the debates over the Mount Soledad cross, defenders of the cross have said surely if the cross must be removed, then old Temple Beth Israel (built a full century after the adoption of the U.S. Constitution)  must either be moved or modified so as to eliminate its clear religious symbolism. I think they make a good point.  In the event that the cross is ordered to be removed by the U.S. Supreme Court, I think that the Jewish community should be prepared to find some private land to which the venerable old temple can be moved again.  Let it be rededicated to the service of the Jewish people.

6. Elimination of symbols from gravestones—I mention this only because it comes up, but I believe it is far-fetched. If you visit Fort Rosecrans National Cemetery, you will see that the otherwise uniform white grave markers are decorated with crosses, or Stars of David, or other religious or non-religious symbols in accordance with the wishes of the family members of the deceased.  Here again, it would be wrong for the government to deny the free exercise of religion to the families of people whose loved ones gave their lives in defense of American values.

7) The prohibition of religious ceremonies and displays in public parks—It has become customary for Christians to put up in Balboa Park a series of creches depicting scenes from the life of Jesus.  On numerous occasions, on Simchat Torah, we have seen Congregation Beth Israel hold services in the organ pavilion.  Over the upcoming Rosh Hashanah holiday, Tashlich services will be held at various public lakes and beaches throughout San Diego.  The free exercise of religion means that we can express ourselves religiously in public places through words and actions.  Brief services and temporary displays of religious symbols within public places are rights enjoyed by any denomination, with no suggestion that they are being endorsed by the government.  As such, they should be welcomed as examples of our nation's rich, pluralistic heritage. 

8) Invocations at public meetings — Whenever a chaplain offers a prayer prior to a meeting of a City Council, or a body of the state Legislature, or the Congress, the question arises whether this doesn't clearly entangle church and state. My belief is that with appropriate guidelines, such a practice may be quite beneficial. The guidelines would include rotating the opportunity to speak words of reflection among representatives of various belief systems, including not only the religious but the humanist.  Secondly, before the prayer or discourse is delivered, a statement should be read by the presiding officer saying that such invocations or words of reflection are welcomed in the spirit of honoring all our citizens, and in the hope that the words about to be spoken will help public officials better understand their duty to all the citizenry. However, these words do not constitute an official expression of public policy.