SAN DIEGO -- The city's sale of the Mount Soledad cross to a private entity was unconstitutional, a federal appeals panel held Wednesday -- the second such finding in five years.

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On a 7-4 vote, the 9th U.S. Circuit Court of Appeals ruled that the sale violated Article XVI, Section 5, of the California Constitution, which prevents government agencies from favoring religious organizations.

An injunction blocking the sale was continued and the case was sent back to U.S. district court.

The ruling reversed a decision a federal judge made last year, in which an open bidding process was found sufficient to overcome constitutional questions.

The status of the 43-foot-high cross in La Jolla has been an issue since Phillip Paulson filed his first suit in 1989.

After courts held that the presence of the cross on public land violated the constitution, the city sold the tract to a private group.

Paulson sued again, and the 9th Circuit held in September 1997 that the sale favored Christian organizations and was unconstitutional.

The next sale by the city was opened to bid. A half-acre of land around the cross was bought by the Mount Soledad Memorial Association.

Paulson lost at the appellate level in the 2001 case, then was denied again at the district level when the case was sent back.

Wednesday's opinion came on an appeal of the most recent district court ruling.

U.S. District Judge Susan P. Graber determined that the city went against previous state Supreme Court decisions that ban "any involvement, whatever it is, which has the direct, immediate and substantial effect of promoting religious purposes."

Graber wrote that "government conduct seeks to preserve" the cross, which was a "sectarian symbol that conveys a religious message."

In his dissent, Judge Ferdinand F. Fernandez wrote that the property went to the highest bidder, the association was required to maintain the site as a war memorial and no restriction was placed on whether the cross should remain or be removed.

Also Wednesday, the same court ruled that the Pledge of Allegiance is unconstitutional, because of the words "under God" added by Congress in 1954.