Carpenter

concurring in the result:

Because Ellis v. City of La Mesa, 990 F.2d 1518 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 2707 , 129 L.Ed.2d 834 (1994), controls the disposition of this ease, I concur in the result.

■In this first of two similar eases, 1 we must decide whether the City and County of San Francisco violates the No Preference Clause of the California Constitution by its ownership and display of a 103-foot concrete and steel Latin cross in Mount Davidson Park (the “Mount Davidson Cross”).

I

Mount Davidson Park is a roughly 40-acre public park atop Mount Davidson located in and owned by the City and County of San Francisco. Within the Park is a large, unadorned concrete and steel cross which stands 103-feet tall and 39-feet across. A copper box inside the foundation of the Cross contains a number of items including newspapers, telephone directories, two Bibles, two rocks from the Garden of Gethsemane, and a jug of water from the Jordan River. A plaque at the base of the Cross is inscribed with the words “Sunrise Easter Cross/Mount Davidson/First Service 1923.” 2 There are no signs identifying the owner of the Cross.

In 1923, prior to the creation of the Park, the first Easter Sunrise service was held on Mount Davidson. Several wooden crosses were erected for the service, but they were all subsequently destroyed by fire, wind or vandals. In 1932, the City gained title to the…