Legal fight over Mojave cross continues

Thursday, April 29, 2010

WASHINGTON — The legal battle over the Christian cross on Sunrise Rock is not over. That became clear yesterday as both sides in the dispute over religious symbols on public land picked their way through a fractured Supreme Court opinion that sent the cross controversy back to lower courts.

Ruling in the long-running case Salazar v. Buono, the Court reversed decisions that had halted implementation of a 2004 federal law aimed at ending the dispute over the World War I veterans memorial on remote federal land in California’s Mojave Desert. The law would transfer the land on which the eight-foot cross stands to a private party — the Veterans of Foreign Wars — so it could no longer be said that a Christian cross was being maintained on public property.

“Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message,” Justice Anthony Kennedy wrote in the Court’s lead opinion. “Placement of the cross on government-owned land was not an attempt to set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our nation’s fallen soldiers.”

Kennedy said that in the more than seven decades that the cross has stood in its current location, “the cross and the cause it commemorated had become entwined in the public consciousness.”

Kennedy’s analysis of the cross as something more than a Christian religious symbol was echoed in a separate opinion by Justice Samuel Alito.

While acknowledging that the cross is “the preeminent symbol of Christianity,” Alito said the cross that was erected “no doubt evoked the unforgettable image of the white crosses, row on row, that marked the final resting places of so many American soldiers who fell in that conflict.”

These expansive views of the cross disturbed some religious leaders. Anti-Defamation League chair Robert Sugarman and Abraham Foxman, its national director, said in a joint statement, “One troubling aspect of this decision is that the plurality drew far-reaching theological conclusions when it determined that the cross has some universal meaning beyond Christianity. This claim should be equally offensive to Christians and non-Christians.”

The Supreme Court ruling, which included writings by six of the nine justices, sent the case back to the U.S. District Court for the Central District of California with instructions to give greater weight to the land-sale law.

U.S. District Judge Robert Timlin had ruled that the new law did not change the need for the existing injunction against the cross, and he blocked implementation of the law. “This was error,” wrote Kennedy. A panel of the 9th U.S. Circuit Court of Appeals upheld the injunction against the law. Kennedy said Congress’ legislative judgment deserved more careful attention from the judge and “should not have been dismissed as an evasion.”

Kennedy’s writing did not order the judge to rule a specific way after giving more weight to what Congress passed. But Kennedy’s clear message was that, even if the judge still finds the cross to be a form of religious endorsement, he should consider “less drastic relief” than blocking the law altogether. One possible remedy mentioned by Kennedy: erecting signs to make it clear the VFW, not the government, owns the land on which the cross stands. During oral argument last October, Solicitor General Elena Kagan said the government was willing to post such a sign.

But the prospect of further proceedings in the case at the district court level gave opponents of the cross on public land some hope.

“Although we’re disappointed that the Court did not simply affirm the district court’s ruling that the land transfer was impermissible, we’re encouraged that the case is not over,” said American Civil Liberties Union lawyer Peter Eliasberg, who argued before the Court on behalf of Frank Buono, a retired government worker who first challenged the cross.

“The wrangling over the display will continue,” said K. Hollyn Hollman, general counsel of the Baptist Joint Committee for Religious Liberty, which sided with Buono. “It does religion no good when religious individuals and communities seek to advance religion through official government religious displays.”

There was another silver lining in the decision, said Alex Luchenitser, senior litigation counsel for Americans United for Separation of Church and State, which argued against the cross. Luchenitser called it a “very bad decision,” but said the good news was that “technically, nothing other than the holding should be treated as precedent,” including Kennedy's discussion of the meaning of the cross. That is because no one opinion commanded a majority.

Only Chief Justice John Roberts joined Kennedy’s opinion in full. Alito concurred with most of Kennedy’s opinion, but said he saw no need to send the case back to district court before allowing the law to take effect. Congress acted properly, Alito said, to avoid the “disturbing symbolism” that would have been created if the cross had been destroyed.

Justices Antonin Scalia and Clarence Thomas joined only Kennedy’s bottom-line judgment, because they asserted that Buono did not have standing to sue. Scalia said federal courts could not rule on the merits of the cross dispute until a “proper case” was presented. “This is not it,” he concluded.

In dissent, retiring Justice John Paul Stevens, a World War II veteran, said, “I certainly agree that the nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message.” He added, “Making a plain, unadorned Latin cross a war memorial does not make the cross secular. It makes the war memorial sectarian.” Justices Ruth Bader Ginsburg and Sonia Sotomayor joined Stevens’ dissent.

Justice Stephen Breyer wrote a separate dissent, agreeing that applying the injunction to block the federal law was appropriate.

Groups that support public accommodation of religious practices applauded the decision. Jay Sekulow, chief counsel of the American Center for Law and Justice, said, “The Court has sent a message that the mere existence of a religious symbol in a public place does not create a constitutional crisis.”

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