concurring.
CANBY, Circuit Judge.I agree with the majority that there is sufficient evidence in the record to support the district court’s ruling that the auction was properly conducted. Were I deciding this case without the constraint of our very recent decision in Paulson v. City of San Diego, 262 F.3d 885 (9th Cir.2001), however, I would conclude that the present arrangement violates the State’s “no preference” clause1 and the Constitution’s Establishment Clause. I find it highly significant that the land in question was part of a public park that had an impermissible religious cross on it, and then was conveyed to private parties with a requirement that the land remain open to the public. From the public’s viewpoint, noth*619ing has really changed; the land that was public as part of the park remains public despite the change of title, and the religious display remains on it. See Marsh-field, 203 F.3d 487, 495 (7th Cir.2000). In essence, the land has become a public forum in which only one group can maintain a particular religious symbol. See id. The City’s disclaimers, although well-phrased and explicit, are not enough, in my view, to overcome the perception arising from the actual use of the land.
My views, however, now appear to be irreconcilable with Paulson, which at least for the moment is the law of our circuit. I therefore concur in the judgment under its compulsion.
. I do not agree with the majority's interpretation of the statement in Ellis v. City of La Mesa, 990 F.2d 1518, 1525 (9th Cir.1993), that "[a]s a threshold consideration, we must determine if the display is on public property.” That statement was simply an introduction to the analysis in the context of that case; it did not announce a rule that a local government could never violate the "no preference” clause when the religious display is on private property. Certainly sale by a city of a tiny plot in a park on condition that the purchaser maintain a particular religious symbol on it would violate the "no preference” clause. See Murphy v. Bilbray, 1997 WL 754604 at *10 (S.D.Cal.1997).