Cross Loss?

Fractious Justices Send Mojave Cross Case Back To Lower Court, But Church-State Separationists See Trouble Ahead

To Justice John Paul Stevens, one thing is perfectly clear: The Christian cross in the Mojave National Preserve cannot commemorate all veterans of World War I.

“Congressional action, taken after due deliberation, that honors our fallen soldiers merits our highest respect,” observed Stevens, the Supreme Court’s only war veteran. “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.”

Governmental use of a sectarian symbol to memorialize all fallen soldiers, he said, not only violates the separation of church and state, but also results in “a dramatically inadequate and inappropriate tribute.

“Making a plain, unadorned Latin cross a war memorial,” he said, “does not make the cross secular. It makes the war memorial sectarian.”

But Stevens’ views did not prevail at the high court.

In a splintered decision April 28, the justices sent a legal dispute centered on a cross in the California preserve back to a lower court for additional analysis. That rather anti-climactic bottom line, however, obscured a debate at the high court that troubled many religious liberty advocates.

The fight over the cross has been under way for more than nine years. Former park service employee Frank Buono filed a lawsuit against the religious symbol on Sunrise Rock because he believed it violated the First Amendment’s command against government favoritism for one faith over others. Buono, himself a Roman Catholic, was particularly incensed when the park service turned down a request to put up a Buddhist shrine and left the Christian symbol in place.

The cross may have been intended as a memorial to the war dead when it was erected by local veterans in 1934, Buono insisted, but its presence on public land today undercuts church-state separation.

A federal district court agreed, and an appeals court followed suit.

But Congress, prodded by Religious Right forces and some veterans’ groups, passed a series of laws intended to keep the cross in place. Congress declared it a national memorial, forbade the use of public funds to take it down and finally approved the transfer of one acre of land at the base of the cross to the Veterans of Foreign Wars.

That congressional move sparked another round of battles in federal court. And, again, a district judge and appeals court held that Congress was improperly intervening to keep the cross in place and defy a court injunction.

Some on the nation’s highest court, however, disagreed,

Justice Anthony Kennedy, in his controlling plurality opinion, said a lower court judge should not have assumed illicit motives on the part of Congress. Rather, he said, it could have been an attempt by Congress to solve a dilemma and achieve a “policy of accommodation” of religion.

“It could not maintain the cross without violating the injunction, but it could not remove the cross without conveying disrespect for those the cross was seen as honoring,” wrote Kennedy, joined by Chief Justice John Roberts and Justice Samuel Alito. “Deeming neither alternative to be satisfactory, Congress enacted the statute here at issue.”

Kennedy didn’t stop there. He waded into deeper constitutional and theological waters by declaring the cross to have multiple meanings.

“[A] Latin cross,” he said, “is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”

Kennedy also insisted, “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. 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.”

Kennedy’s attempt to co-opt the cross as a secular, as well as a religious symbol drew withering fire from Stevens, who insisted that “the cross cannot take on a nonsectarian character by congressional (or judicial) fiat.”

In a dissenting opinion (joined by Justices Sonia Sotomayor and Ruth Bader Ginsberg), Stevens said, “The cross is not a universal symbol of sacrifice. It is the symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith.

“The cross has sometimes been used, it is true, to represent the sacrifice of an individual, as when it marks the grave of a fallen soldier or recognizes a state trooper who perished in the line of duty,” he continued. “Even then, the cross carries a religious meaning. But the use of the cross in such circumstances is linked to, and shows respects for, the individual honoree’s faith and beliefs.

“I, too, would consider it tragic if the nation’s fallen veterans were to be forgotten,” he said. “But there are countless different ways, consistent with the Constitution, that such an outcome may be averted.”

Concluded Stevens, “I believe that most judges would find it to be a clear Establishment Clause violation if Congress had simply directed that a solitary Latin cross be erected on the Mall in the Nation’s Capital to serve as a World War I Memorial. Congress did not erect this cross, but it commanded that the cross remain in place, and it gave the cross the imprimatur of Government. Transferring the land pursuant to [federal law] would perpetuate rather than cure that unambiguous endorsement of a sectarian message.

“The Mojave Desert is a remote location, far from the seat of our Government,” he concluded. “But the Government’s interest in honoring all those who have rendered heroic public service regardless of creed, as well as its constitutional responsibility to avoid endorsement of a particular religious view, should control wherever national memorials speak on behalf of our entire country.”

Other justices took entirely different approaches to the case. Justices Antonin Scalia and Clarence Thomas said Buono should not have had “standing” – the legal right to sue – to bring the case at all. Justice Stephen Breyer said the district court reasonably found congressional interference in the case to be improper and the high court should concur.

Reaction to the Salazar v. Buono decision was swift.

“I’m very disappointed,” said Barry W. Lynn, Americans United executive director. “The court majority was clearly determined to find any bogus reason to keep this religious symbol in a public park. It’s alarming that the high court continues to undermine the separation of church and state. Nothing good can come from this trend.”

Lynn said the ruling will likely encourage further assaults on the church-state wall.

“This decision lets Congress bypass the Constitution and devise a convoluted scheme to keep a cross on display in a federal park,” Lynn remarked. “That’s bad law and bad public policy.

“The court majority seems to think the cross is not always a Christian symbol,” Lynn continued. “I think all Americans know better than that.”

But Religious Right forces were generally pleased with the outcome, regretting only that the high court didn’t go farther and immediately rule that the congressionally protected cross is okay.

“This is a good decision that should encourage people of faith about being discriminated against in the public square,” said Richard Land of the Southern Baptist Ethics & Religious Liberty Commission. “But the penalty you pay for having conservative, strict-constructionist judges is they rule as narrowly as they can.”

Land told Baptist Press that it is “unfortunate” that the justices returned the case to the lower court, “but at least they upheld the right of the cross to remain there.”

The Alliance Defense Fund (ADF) took a similar stance.

“Americans want memorials to our nation’s fallen heroes protected,” said ADF Senior Counsel Jordan Lorence. “Congress was doing just that when it transferred the land under this memorial to the veterans’ group that cares for it.”

A cavalcade of religious and advocacy groups had lined up on both sides in the Salazar lawsuit.

Defenders of the government-sanctioned religious display included TV preacher Pat Robertson’s American Center for Law and Justice, the late Jerry Falwell’s Liberty Counsel, Christian Legal Society, Thomas More Law Center,, the National Association of Evangelicals and Alabama “Commandments Judge” Roy Moore’s Foundation for Moral Law.

Americans United filed a brief in support of government neutrality toward religion. The brief was joined by the Anti-Defamation League, the Jewish Council for Public Affairs, the Military Religious Freedom Foundation, the North American South Asian Bar Association, People For the American Way Foundation and the Union for Reform Judaism.

While several major veterans’ groups backed the Mojave cross, organizations representing religious minorities and non-theists took the opposite stance. Among them were the Military Association of Atheists and Freethinkers, the American Muslim Armed Forces and Veterans Affairs Councils, the Muslim American Veterans Association and the Jewish War Veterans of the United States.

Parties to the lawsuit indicated that the battle will now resume at the lower court level.

Plaintiff Buono is represented by the ACLU of Southern California.

Said ACLU lawyer Peter Eliasberg, “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.”

Opponents agreed.

“We applaud the Supreme Court for overruling the decisions below, but this battle is not over,” Liberty Counsel’s Kelly Shackelford, an attorney representing the Veterans of Foreign Wars and other military service organizations, told the Christian Science Monitor.

Ironically, the conflict over the Mojave cross may take place with the religious symbol itself missing.

On May 10, a National Park Service employee discovered that the cross had been stolen. The symbol, made of pipes filled with cement, was broken loose from its base and carried away.

Law enforcement officials are investigating the crime, and veterans’ groups have offered a reward for information leading to the culprit’s arrest.

An anonymous caller told the Desert Dispatch that the religious symbol was taken by a person who thought it did not represent all veterans.

A subsequent letter to the Barstow, Calif., newspaper said the cross was being carefully preserved but denounced Justice Kennedy’s claim that a Christian symbol could honor all veterans.

“Despite what many people are saying, this act was definitively not anti-Christian,” the letter insisted. “It was instead anti-discrimination. If this act was anti-Christian, the cross would not have been cared for so reverently. An anti-Christian response would have been to simply destroy the cross and leave the pieces in the desert.

“We as a nation,” the missive continued, “need to change the dialogue and stop pretending that this is about a war memorial. If it is a memorial, then we need to stop arguing about the cross and instead place a proper memorial on that site, one that respects Christians and non-Christians alike, and one that is actually recognizable as a war memorial. If an appropriate and permanent non-sectarian memorial is placed at the site the cross will be immediately returned….”

The ACLU’s Eliasberg condemned the theft.

“However you feel about the cross, this was not permissible and should not have been done,” he told the Los Angeles Times.