Mojave Cross Can Stay on Display in California

Daily News Article — Posted on April 29, 2010

(by Valerie Richardson, WashingtonTimes.com) – An 8-foot cross honoring fallen soldiers in the remote Mojave National Preserve in California can stay where it is, because the Supreme Court said Wednesday that the Constitution nowhere requires the “eradication of all religious symbols in the public realm.”

Justice Anthony M. Kennedy, writing the lead opinion in a 5-4 decision in which several justices wrote separate concurrences and dissents, compared the Mojave Cross to a hypothetical highway memorial marking the death of a state trooper to make the point that such displays “need not be taken as a statement of governmental support for sectarian beliefs.”

“The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society,” Justice Kennedy said in his opinion. “Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework.”

Leading the dissenters was Justice John Paul Stevens, who called the war memorial “unprecedented” in its starkly religious tone.

“Congressional action, taken after due deliberation, that honors our fallen soldiers merits our highest respect,” said Justice Stevens, who recently announced his plan to retire. “As far as I can tell, however, it is unprecedented in the nation’s history to designate a bare, unadorned cross as the national war memorial for a particular group of veterans.”

The justices didn’t rule technically on the constitutional issue of whether the cross constitutes an establishment of religion. However, they declined to rule that the cross was a First Amendment violation, as asked, and the majority justices’ language indicate a more benign view of religious expression on public lands.

Instead, the justices sent the case, Salazar v. Buono, back to a lower federal court and told the judge to look again at how the constitutional issues are affected by a congressional plan to transfer the federal land beneath the 8-foot cross to a veterans group. Lower federal courts had said the transfer was insufficient, a finding the justices implicitly rebuked.

Voting with Justice Kennedy in favor of keeping the cross was the court’s conservative bloc, Chief Justice John G. Roberts Jr., and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas. Opposed were Justices Stevens, Ruth Bader Ginsburg, Sonia Sotomayor and Steven G. Breyer.

The American Civil Liberties Union filed the lawsuit on behalf of Frank Buono, a former assistant superintendent at Mojave National Preserve, who said that the memorial offended him [and was a violation of the First Amendment ban on a government “establishment of religion”]. The original cross was erected atop an outcropping known as Sunrise Rock in 1934 by World War I veterans.

A federal court ruled in Mr. Buono’s favor and ordered the removal of the cross, but Rep. Jerry Lewis, California Republican, inserted language into a defense appropriations bill declaring the cross site a national memorial.

Mr. Lewis also arranged to transfer the acre of land surrounding the Mojave Cross to the Barstow Veterans of Foreign Wars, thus placing the cross on private land.

The ACLU argued that the land transfer was a calculated effort to circumvent the court ruling, and the 9th U.S. Circuit Court of Appeals agreed, saying the land transfer “would leave a little donut hole of land with a cross in the midst of a vast federal preserve.”

But the lower court “did not acknowledge the statute’s significance,” Justice Kennedy said in his opinion.

“In belittling the government’s efforts as an attempt to ‘evade’ the injunction, the District Court had things backwards,” said Justice Kennedy. “Congress’s prerogative to balance opposing interests and its institutional competence to do so provide one of the principal reasons for deference to its policy determinations.”

The case was sent back to the lower court.

Peter Eliasberg, managing attorney for the ACLU of Southern California, said the organization would continue to argue that the land transfer failed to address concerns over the separation of church and state.

“Although we’re disappointed by today’s decision, we’re encouraged that the case is not over,” Mr. Eliasberg said. “The cross is unquestionably a sectarian symbol, and it is wrong for the government to make such a deliberate effort to maintain it as a national memorial.”

The Mojave Cross is now encased in a plywood box, hidden from view while litigation is ongoing. The original wooden cross has been replaced several times, and the current version is constructed of white metal.

“Congress has repeatedly voted overwhelmingly to protect the Mojave Cross as a memorial to veterans and those who have died to defend our nation, never intending it to be preserved as a religious symbol,” said Mr. Lewis, whose district includes the desert area where the cross is located.

“I am gratified that the Supreme Court has upheld the right and authority of Congress to seek these solutions in memory of our veterans,” he said.

The decision came as a victory for religious-freedom groups fighting efforts to eliminate religious symbols and references from the public square.

“A passive monument acknowledging our nation’s religious heritage cannot be interpreted as an establishment of religion,” said Joseph Infranco, senior counsel of the Alliance Defense Fund, which filed a friend-of-the-court brief defending the cross. “To make that accusation, one must harbor both a hostility to the nation’s history and a deep misunderstanding of the First Amendment.”

Eric Rassbach, national litigation director of the Becket Fund for Religious Liberty, which also filed a brief in the case, applauded the ruling as “simple common sense.”

“The First Amendment guarantees the right to speak and believe freely; it does not give busybodies the right to cut down religious symbols they don’t like,” Mr. Rassbach said.

At the same time, the ruling leaves unanswered several questions, such as what legal standard should be applied to religious displays on public property, according to the Becket Fund.

The cross supporters had feared that an unfavorable ruling would have jeopardized the nation’s hundreds of cross-bearing roadside memorials, as well as other war memorials.

At least two other cross cases are in federal courts. One concerns a 29-foot cross at a war memorial on Mount Soledad near San Diego and the other the 12-foot roadside crosses that Utah uses to memorialize highway patrol troopers killed in the line of duty.

Copyright 2010 News World Communications, Inc. Reprinted with permission of the Washington Times. For educational purposes only. This reprint does not constitute or imply any endorsement or sponsorship of any product, service, company or organization. Visit the website at washingtontimes.com.

Background

Salazar v. Buono was a legal case argued before the United States Supreme Court regarding the establishment clause of the First Amendment to the United States Constitution. The case concerned the legality of the Mojave cross, a Latin cross which was placed atop a prominent rock outcropping in 1934 to honor war dead. The location is known as "Sunrise Rock" in the Mojave National Preserve in San Bernardino County in southeastern California. (from wikipedia.org)

On the Supreme Court from BensGuide.gpo.gov:

Approximately 7,500 cases are sent to the Supreme Court each year. Out of these, only 80 to 100 are actually heard by the Supreme Court. When a case comes to the Supreme Court, several things happen. First, the Justices get together to decide if a case is worthy of being brought before the Court. In other words, does the case really involve Constitutional or federal law? Secondly, a Supreme Court ruling can affect the outcome of hundreds or even thousands of cases in lower courts around the country. Therefore, the Court tries to use this enormous power only when a case presents a pressing constitutional issue. ...
The Supreme Court convenes, or meets, the first Monday in October. It stays in session usually until late June of the next year. When they are not hearing cases, the Justices do legal research and write opinions. On Fridays, they meet in private (in "conference") to discuss cases they've heard and to vote on them. ...
Most cases do not start in the Supreme Court. Usually cases are first brought in front of lower (state or federal) courts. Each disputing party is made up of a petitioner and a respondent.
Once the lower court makes a decisions, if the losing party does not think that justice was served, s/he may appeal the case, or bring it to a higher court. In the state court system, these higher courts are called appellate courts. In the federal court system, the lower courts are called United States District Courts and the higher courts are called United States Courts of Appeals.
If the higher court's ruling disagrees with the lower court's ruling, the original decision is overturned. If the higher court's ruling agrees with the lower court's decision, then the losing party may ask that the case be taken to the Supreme Court. But ... only cases involving federal or Constitutional law are brought to the highest court in the land.