Mojave cross case heard by Supreme Court, could have implications for Mt. Soledad cross

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SAN DIEGO, Calif. — Two white crosses, one with a sweeping view of urban sprawl, accented by the cooling salty, blue Pacific Ocean, the other a quiet sentry of sacrifice above the barren, dusty floor of the Mojave Desert.

Constructed in different decades, in different topographies with different facades, the sister crosses have enough similarities they could be fraternal twins, if not for the different birthdates. Both call Southern California home; both were erected to honor America's war dead. Both are at the center of high-profile religious freedom cases.

The oldest sibling, the Mojave Desert Cross, constructed in 1934, could blaze a trail for Mount Soledad, birthed 20 years later. Whether it will do so is likely up to the U.S. Supreme Court, which heard oral arguments Oct. 7 regarding the constitutionality of the Mojave cross, located on a remote dome of rocks in a national preserve.

Chuck LiMandri, the attorney representing the Mount Soledad Veterans Memorial, which is also being challenged on constitutionality grounds, said he believes the ramifications from a negative high court ruling on the Mojave cross would be limited, while a victory could cause the plaintiffs in the San Diego lawsuit to rethink their case.

"I'm feeling pretty confident now, regardless of the outcome of the Mojave case," the attorney said.

The makeup of the court is an especially critical—and often unpredictable—issue for religious freedom cases. With conservative Chief Justice John Roberts guiding the panel, most believe the court could split 5-4 in either direction.

"The balance of the court is tenuous right now," LiMandri said.

After monitoring the scope of the Supreme Court justices' questions during the Mojave hearing, most religious freedom experts, including LiMandri, anticipate the court will not tackle the substantive issues surrounding the establishment clause, the heart of the constitutionality question. Instead, they expect the court decision will rule more narrowly on technical issues, such as whether the plaintiff had legal standing, or the right, to bring the suit in the first place.

"The Roberts court tends to define things narrowly in an effort for consensus," LiMandri said.

A similarly narrow ruling was handed down by the pre-Roberts high court in 2004 when it decided plaintiff Michael Newdow—seeking to have the phrase "under God" eliminated from the Pledge of Allegiance at schools—did not have the legal right to sue over his objections because he was a non-custodial parent.

"They could rule it's not enough to simply be offended by this," LiMandri said, adding that the cross' remote Mojave location could add credence to such a ruling.


Land transfer challenged
In an effort to settle the constitutional questions raised by the former park service employee who filed suit in the Mojave case, Congress OK'd a land transfer to the Veterans of Foreign Wars, a private organization. But two lower courts said that the resulting land transfer did not alleviate the constitutional issues, since the deed requires that the cross be maintained on the property or it would revert back to the government.

The issue of land transfer is also at the heart of the existing lawsuit against Mount Soledad, the last of two suits over the monument to be resolved. Though similar to the Mojave case, LiMandri said Mount Soledad has some significant differences.

"The transfer was a taking by the federal government and there was nothing in that document that said the cross had to stay," LiMandri said.

The issue of constitutionality with the Mount Soledad cross was resolved in 2006 when the U.S. government took ownership of the memorial for use as a national war memorial. The memorial is now under the jurisdiction of the Department of Defense. The move was expected to settle the original cases, which began in 1989, making it the longest religious freedom case of its kind in the United States.

But a new suit was filed to challenge the land transfer, and the case is now awaiting a hearing before the 9th U.S. Circuit Court of Appeals, although a trial date has not been set.

In addition to the different means by which the crosses were transferred, the Rancho Santa Fe attorney said he believes the transfer issue is harder to argue in the La Jolla case because the monument features much more than a cross.

"It's a multifaceted, fully integrated, world-class war memorial," he said. "It still has legitimate nonreligious significance."

He said similar arguments have been successfully used in numerous 10 Commandment cases when judges have ruled them to be more of a code than religious document.


Common use?
If the high court decides to rule on the constitutional issues in this case, LiMandri said the justices could consider that the memorial cross has broader symbolism than merely Christianity. He said cemeteries, other landmarks and even roadside memorials have used crosses simply as grave markers or symbols of self-sacrifice.

"They use crosses for all different purposes," the attorney said. "Even in Normandy they don't check someone's religion."

A ruling in Mojave that the cross has a broader purpose than Christianity would send a strong message to the plaintiffs in the Soledad case, LiMandri said.

"That would automatically mean the Mount Soledad cross is OK to keep because it is something other than just religious worship," he added.

If the constitutionality of the cross is not broached in the Mojave case, Mount Soledad could become the next big test. Advocates on both sides of the issue argue that the lines are blurred and that the court needs to establish a precedent.

In the meantime, attorneys on both sides wait. Although a date for the Soledad trial has not been set, LiMandri said he expects it to be heard within three months, with a decision rendered three months after that. And, as is often the case with twins, their paths may cross again. The San Diego attorney said the U.S. Supreme Court could issue their Mojave ruling in six months, meaning the fates of both crosses could be determined at the same time.

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