WASHINGTON The U.S. Supreme Court plunged once again into the church-state legal battle Feb. 23 when it agreed to hear a case involving the constitutionality of a 75-year-old World War I memorial cross that sits in the Mojave National Preserve desert.
At issue is whether the cross, which stands about eight feet tall, is an unconstitutional government establishment of religion, as the American Civil Liberties Union which filed suit in 2001 contends. The Ninth Circuit Court of Appeals agreed with the ACLU and ordered the cross taken down. Congress tried to intervene and make the land private, but the Ninth Circuit found that unconstitutional as well.
The high court will hear the case this fall.
It is at least the second time that the court, with its newest members, has agreed to hear a significant church-state case. Last fall the court heard a case involving the refusal by the city of Pleasant Grove, Utah, to erect an obscure religious sect's monument next to a Ten Commandments display in a city park. The court has yet to issue a ruling.
Conservatives are hoping that the justices will be friendlier on church-state cases now that President Bush's two nominees, John Roberts and Samuel Alito, are on the court. Neither man was on the court in 2005 when the justices issued a split decision in two Ten Commandments display cases. Alito replaced Sandra Day O'Connor, who voted with the court's liberal block in both cases, each of which were 5-4 decisions. If she had voted with the conservative block, Ten Commandments supporters would have won both rulings.
War veteran organizations are watching the Mojave case and the Utah case closely, believing they could impact war memorials nationwide. The Mojave cross was erected by the Veterans of Foreign Wars Post 2884.
Liberty Legal Institute filed a friend-of-the-court brief in November on behalf of five veterans organizations including the VFW and American Legion asking the high court to take the case.
"The veterans memorials of this country were not lightly constructed, nor do they advance a particular creed or religion," the brief stated. "Instead, they represent this nation's best efforts to give meaning to a cause that cannot alone be sustained by empty rhetoric and talk of abstract freedom. Veterans gave their best to this nation so that it might not perish from the Earth, but rather long endure. At the very least, we request this Court to honor their sacrifice by preserving the remnants of their mark on us all, the veterans memorials."
Although attorneys for the Bush administration asked the high court to take the case, attorneys for the Obama administration will be responsible for defending the cross in court.