Mojave Cross Wins Test

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Mojave Cross Wins Test

Special Report - May 4, 2010
For now, a Latin cross memorializing World War I veterans can remain where it was first placed by private citizens over 70 years ago—on Sunset Rock in the government-owned Mojave Desert Preserve—after the U.S. Supreme Court ruled on April 28 that a lower court erred in its decision that would have forced the government to remove the cross. However, the Supreme Court’s 5 to 4 decision in Salazar v. Buono is not the final word on the Mojave Desert cross, which is currently enclosed in a plywood box, as a result of an ongoing lawsuit by the American Civil Liberties Union (ACLU). The high court sent the case back to the district court to reconsider its previous ruling that a statute passed by Congress in 2004—which allowed the government to transfer ownership of the small strip of land where the cross sits to a private veteran’s group—is unconstitutional.

The ACLU is challenging the cross on behalf of Frank Buono, a retired park service employee, who alleges that the cross represents government endorsement of religion and is offensive to him. In 2002, the U.S. District Court for the Central District of California issued an injunction, ordering the government to remove the cross. An appeals court upheld the ruling, and in 2004, Congress passed a law, granting ownership of one acre of land where the cross sits to the Veterans of Foreign Wars, in an effort to comply with the injunction without actually removing the cross. The ACLU claimed that the land transfer law was unconstitutional and the district court agreed, permanently enjoining the statute from taking effect. The decision, which was later upheld by the 9th Circuit Court of Appeals, would have forced the government to remove the cross. The decision was appealed to the Supreme Court, which on April 28, 2010, reversed the Court of Appeals decision, and sent the case back to the district court to reconsider various constitutional questions related to its ruling that struck down the federal land transfer statute.

Justice Kennedy, who wrote the plurality opinion in the closely divided decision, concluded that the district court erred in its treatment of the land transfer statute: “Even assuming that the land-transfer statute was an attempt to prevent removal of the cross, it does not follow that an injunction against its implementation was appropriate, Justice Kennedy wrote. “By dismissing Congress’s motives as illicit, the District Court took insufficient account of the context in which the statute was enacted and the reasons for its passage. Private citizens put the cross on Sunrise Rock to commemorate American servicemen who had died in World War I. Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message.”

Although the Supreme Court did not directly consider the constitutionality of the Mojave Desert cross in its decision, Justice Kennedy took issue with the claim that a memorial cross represents government endorsement of religion. “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” he 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. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.”

There are several similar challenges to religious symbols—including a lawsuit involving roadside crosses along public highways in Utah—pending in the lower courts that could be impacted by the Supreme Court’s ruling in Salazar v. Buono.

“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 Alliance Defense Fund Senior Counsel Jordan Lorence in a statement. “Americans want memorials to our nations’ fallen heroes protected. Congress was doing just that when it transferred the land under this memorial to the veterans’ group that cares for it.”