On Oct. 7, the U.S. Supreme Court will consider a First Amendment case that has garnered wide attention: Salazar v. Buono, the Mojave Desert cross case. First placed by the Veterans of Foreign Wars on an outcropping in federally owned desert land in 1934 as a war memorial, the cross stood unchallenged until 2000, when the American Civil Liberties Union questioned it in a letter to the National Parks Service. Congress acted quickly to stave off the dispute, enacting a law to bar the use of federal funds to remove the cross, to establish it as a national memorial, and then in 2003, while the challenge was pending, to sell the land surrounding the cross to the VFW.

The ACLU, which represents the person challenging the cross, claims that all those legislative machinations, far from curing the establishment-clause violation, prove that Congress showed favoritism toward a sectarian religious symbol. Congress even retained an interest in the land, stipulating that if the memorial was not maintained, the land would revert to the government. Besides, the ACLU brief states, government “may not use private parties to accomplish what it is forbidden to achieve.”

But many analysts think the Court may decide the case not on the merits of whether the cross violates the First Amendment but on the question of whether Frank Buono, who challenged the cross, has the standing or right to do so.

The government brief points out that Buono, a former assistant superintendent of the desert preserve, lives in Oregon and is Roman Catholic, both facts helping to make his objections insufficient to establish an “injury in fact” required before someone can bring such a case to court. Buono said he was offended by the fact that other religions would be unable to put their symbols in the same location, and said the presence of the cross would deter him from visiting the area.

The ACLU replied that Buono does have sufficient standing, and rejected the idea that Buono’s Catholic faith disqualified him from objecting to a Christian cross. It noted that in Lee v. Weisman, the family that objected to a rabbi's giving a graduation prayer was Jewish.

Veterans’ groups are especially concerned about the Mojave cross case. A ruling that would require taking down the cross, says Kelly Shackelford of Liberty Legal Institute, would cause “incredible havoc around the country” by threatening a broad range of government memorials. Shackelford filed a brief for the VFW and several other veterans’ groups. Jim Sims of the Military Order of the Purple Heart worries that “if the plaintiffs are so offended by this cross,” they may be equally offended — and ready to sue — “when they go by Arlington Cemetery.”

Updated September 2009