High court to weigh dispute over Mojave cross

Tuesday, February 24, 2009

WASHINGTON — A large Christian cross stands hidden inside a plywood box atop an outcropping in a California desert, symbolizing the unsettled state of First Amendment law on the placement of religious symbols on public property.

But the box might soon be removed to reveal the cross again — or the cross could come down altogether — depending on how the Supreme Court rules in a longstanding dispute over the religious display.

The Court agreed yesterday to take up Salazar v. Buono, the case of the cross that serves as a war memorial in the federal Mojave National Preserve in San Bernardino County. It will test the attitude of the new Roberts Court — especially the newest justice, Samuel Alito Jr. — on how to resolve thorny establishment-clause questions.

If the high court rules that the cross violates the First Amendment, a brief by the Veterans of Foreign Wars warns, “The destruction of this and an untold number of like veterans memorials is sealed.” The brief cites everything from the Navy Cross to crosses at Arlington National Cemetery as possible targets.

But Barry Lynn, executive director of Americans United for Separation of Church and State, says, “The federal parks belong to all Americans and are not the appropriate place for the display of religious symbols.” Lynn adds, “Men and women of many faiths and none have served our country honorably … . A Christian symbol cannot memorialize them all.”

The Mojave cross was erected in 1934 by the Veterans of Foreign Wars to honor veterans who died in World War I. The current version is made of metal pipes painted white and stands eight feet tall. It is in a remote area, but is visible from a road within the 1.6-million-acre federal enclave.

After an application to erect a Buddhist memorial nearby was denied in 1999, the American Civil Liberties Union voiced concern about the presence of the cross itself. In 2001 Frank Buono, the former assistant superintendent of the preserve, filed suit challenging the presence of the cross and objecting to the government’s refusal to allow other displays. Buono was successful at the district-court and appeals-court levels.

Congress reacted to these challenges by taking several steps to preserve the cross. First it passed a law prohibiting the use of federal funds to remove it, and then it designated the cross as a national memorial.

Finally in 2004, Congress transferred the acre on which the cross sits to the VFW, in hopes that by placing it, in effect, on private property, Congress would immunize the cross from legal action under the First Amendment.

So far, that strategy has not worked. Presented with the changed circumstance of the cross on private property, both the district court and the 9th U.S. Circuit Court of Appeals ruled that the cross still violated the establishment clause. The appeals panel cited the government’s continued supervision and maintenance of the property, and its “Herculean efforts” to preserve the cross. In addition, the sale of the property includes a clause stating that the land would revert to the government if the memorial were discontinued — another sign of the government’s continued interest in the land.

“Under the statutory dictates and terms that presently stand, carving out a tiny parcel of property in the midst of this vast Preserve — like a donut hole with the cross atop it — will do nothing to minimize the impermissible governmental endorsement” of religion, the appeals court found. Since the ruling, the cross has remained in place but is hidden from view by a plywood box.

In the government’s petition to the Court, Bush Solicitor General Gregory Garre argued that the land transfer was “an eminently sensible and constitutionally permissible” solution to the establishment-clause dispute.

The administration also challenged Buono’s standing to challenge the cross. Noting that Buono is a Roman Catholic who has said he does not find the cross offensive in itself, Garre asserted that Buono cannot claim the kind of “injury in fact” that is needed to make a constitutional challenge.

The petition now bears the name of Ken Salazar, the new administration’s interior secretary. It is unlikely that the Obama administration would change its position in the case, especially since the constitutionality of a federal statute — the one allowing the land transfer — is at issue. The solicitor general traditionally is obliged to defend acts of Congress as long as a plausible argument can be made.

The ACLU, which is representing Buono, argues that he does have standing to challenge the cross because his “direct and unwelcome contact” with the cross has caused him to change his route when he travels through the preserve.

The government’s continued role in preserving the cross, as well as the legislation’s clear intent to allow “preferential access to government land for one religion over another” also demonstrate a continuing First Amendment violation, the ACLU asserts.

The outcome of the case could turn on the views of Roberts and Alito, who were not on the Court in June 2005 when it ruled on the placement of Ten Commandments displays on government property. The justices in Van Orden v. Perry allowed a longstanding Ten Commandments memorial on the grounds of the Texas Capitol, but in McCreary County v. ACLU of Kentucky said Ten Commandments plaques placed in Kentucky courthouses with clear religious motives had to be taken down.

Roberts’s predecessor, William Rehnquist, voted to allow both renditions of the Ten Commandments, and it is likely that Roberts would hold the same view. But Alito’s predecessor, Sandra Day O’Connor, opposed both displays, so Alito’s views will be important. Justice Stephen Breyer cast the critical vote in the cases, opposing the Kentucky displays but approving the Texas memorial.

“We are hopeful that the Supreme Court will affirm the appeals court’s decision and send a clear message that the federal government must not endorse one religion over another,” said Peter Eliasberg, managing attorney with the ACLU of Southern California, Buono’s lawyer in the case.

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