Supreme Court OKs Mojave War Memorial cross transfer
Refers case back to lower court for final decision

by Lori Arnold and Theresa Keener

WASHINGTON, D.C. — The U.S. Supreme Court has ordered a federal court in California to re-evaluate its earlier decision nullifying the transfer of a war memorial cross and a small patch of land on which it sits in the Mojave Desert.

The 5-4 ruling, issued April 28, means the case returns to the federal appeals court where the American Civil Liberties Union challenged a congressional effort to bypass constitutional concerns by transferring ownership of the cross to the private VFW. Although the court established a majority to send the case back to the lower court, it failed to craft a single majority opinion. Instead, six justices penned their own opinions, addressing various issues with the case. As a result, the high court, which heard oral arguments in October, took a more narrow approach only addressing the land transfer.

The small Latin cross, on a rocky hilltop in the government-owned Mojave Desert preserve, was erected in 1934 as a tribute to those killed in World War I. The American Civil Liberties Union filed suit against the landmark in 2001 in Salazar v. Buono saying that the cross’ presence in the federal preserve violated the First Amendment.

The ACLU sued the National Park Service on behalf of retired Mojave Preserve Assistant Superintendent Frank Buono, who wrongly claimed that his employer denied a Buddhist colleague’s application to install a Buddhist symbol near the memorial. Both the colleague and the story turned out to be fictitious, but Buono, who fabricated the story, claimed to be offended by the cross and continued the lawsuit, according to the Alliance Defense Fund attorneys.

“The ACLU and its allies should not be able to demolish war memorials based on the objection of one person who can’t seriously claim to have suffered harm from it,” said ADF Senior Counsel Jordan Lorence. “Americans want memorials to our nation's fallen heroes protected. Congress was doing just that when it transferred the land under this memorial to the veterans’ group that cares for it.”

After Congress intervened to transfer ownership of the cross, the ACLU moved to challenge the action as well.

Justice Anthony Kennedy, whose opinion was also signed by Chief Justice John Roberts, challenged the ACLU’s interpretation of the amendment, saying “the intent (of the cross) was simply to honor fallen soldiers.”

“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” Kennedy wrote. “A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs.”

Justice Samuel Alito wrote that he would have elected to allow the land transfer—on hold pending the appeals process—to proceed immediately.

“Removal (of the cross) would have been viewed by many as a sign of disrespect for the brave soldiers whom the cross was meant to honor,” Alito said.

Justices Antonin Scalia and Clarence Thomas went a step farther, saying they would not have allowed the plaintiff, a former national park employee, to challenge the land transfer.

But Justice John Paul Steven, argued in his dissent the cross was distinctly Christian, thus illegal.

“I certainly agree that the nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message.”

The decision came on the final day of service for Justice Stevens, who is retiring. President Barack Obama is expected to nominate his replacement in the coming weeks.

Supporters of the Mojave cross are now hopeful the lower federal court will rule in its favor so the plywood box that has covered the seven-foot cross for the past several years can be removed.

The seven-foot cross, which has been covered by a large box since the lower court’s ruling, stands on top of Sunrise Rock in the Mohave Desert east of Los Angeles near the Nevada border. Since its inception the cross has featured a plaque stating, “The Cross, Erected in Memory of the Dead of All Wars” and “Erected 1934 by Members of Veterans of Foreign Wars, Death Valley Post 2884.” Beginning in 1935, people gathered intermittently at the site for Easter services, and those services became a regular occurrence in 1984.

The Supreme Court’s decision could offer insight to the fate of San Diego’s Mount Soledad cross, which is also being challenged in a case that dates back two decades. That case is now waiting a ruling from 9th U.S. Circuit Court of Appeals, which heard arguments in that case in December.

“We are encouraged by the court’s decision in this case and their recognition that the Constitution does not require the elimination of all religious symbols from the public sphere” said Dean Broyles, founder and chief counsel for the Western Center for Law & Policy. “War memorials and other religious symbols reflect an important aspect of America’s history and heritage, and deserve protection, not persecution. The government can acknowledge and accommodate religion without violating the Establishment Clause.”

Broyles said that the high court’s ruling on the Mojave cross may also prove to be influential with respect to San Diego’s Mount Soledad Veteran’s War Memorial.

A regional landmark for almost 100 years, the cross atop Mount Soledad stands as the centerpiece of a memorial honoring veterans who have served in the nation’s armed forces. As in the Mojave case, the city of San Diego transferred ownership of Mount Soledad to the federal government to be maintained as an official memorial since the U.S. Constitution is not as narrowly defined as California’s constitutional prohibition of religious symbols on public land.

“Much like the situation in the Buono case,” Broyles said. “The federal government has dedicated the Mount Soledad cross as a national veteran’s war memorial, and the court’s decision today bodes well for the preservation of this valuable historical monument.”

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Published, May 2010

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