Tuesday, June 8, 2004
Ninth Circuit: Display of Cross in Mojave Preserve Is Unconstitutional
From Staff and Wire Service Reports
An 8-foot cross in the Mojave National Preserve is an unconstitutional governmental endorsement of religion, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Ruling 3-0, the court upheld a lower court that had ruled against the cross, which has become both a war memorial and a place of worship at a Southern California desert site known as Sunrise Rock.
The case was brought by the American Civil Liberties Union on behalf of a retired National Park Service employee who objected to the religious symbolism of the steel-pipe structure, which sits about 10 miles south of Interstate 15 between Las Vegas and Barstow.
The cross, the subject of constant attack by vandals, was constructed in 1934 by a group of World War I veterans. According to a plaque they placed nearby, the cross was intended as a memorial, but has since attracted Christian worshipers.
The cross has been covered in a heavy tarp after a U.S District Court Judge Robert J. Timlin of the Central District of California sided with the ACLU in 2002, ruling that the “primary effect of the presence of the cross” was to “advance religion.”
The San Francisco-based appeals court, however, did not indicate whether the cross must be immediately removed or whether it can remain covered pending fresh appeals.
“We think this opinion makes it clear that the government has an obligation to take down the cross as soon as possible,” said Peter Eliasberg, an ACLU attorney.
The park service did not return calls seeking comment yesterday on whether it would ask the Ninth Circuit to reconsider, appeal to the Supreme Court or let the opinion stand and remove the cross.
Sixty years after the cross was constructed, Congress in 1994 declared the 1.6 million-acre area, which is covered with Joshua trees, a national preserve under the National Park Service’s jurisdiction.
The park service, however, defended the cross in court, saying the outcropping it rests on was being transferred to a local Veterans of Foreign Wars post in exchange for five acres of privately held land near the preserve, which is in San Bernardino County.
Congress has also declared the site a war memorial.
The government told the court that the pending land transfer mooted the case.
But the appeals court said the transfer could take years, meaning that the cross was still on public land. Judge Alex Kozinski, a Reagan appointee, said that, even if the land was transferred, the cross might still be a government endorsement of religion.
In ruling against the government, Kozinski noted that the park service has not opened the cross site to other permanent displays, religious or not. In 1999, the park service rejected an application for a monument to Buddha near the cross.
Kozinksi said the case was “squarely controlled by the Ninth Circuit’s 1996 per curiam opinion in Separation of Church & State Committee v. City of Eugene, 93 F.3d 617. That case involved a cross on a hill in a city park in Oregon.
Kozinski rejected the Interior Department’s efforts to distinguish the two crosses based on the Mojave display’s smaller size and more remote location.
“These distinctions are of no moment,” he wrote. “Though not illuminated, the cross here is bolted to a rock outcropping rising fifteen to twenty feet above grade and is visible to vehicles on the adjacent road from a hundred yards away. Even if the shorter height of the Sunrise Rock cross means that it is visible to fewer people than was the SCSC cross, this makes it no less likely that the Sunrise Rock cross will project a message of government endorsement to a reasonable observer.”
The case is Buono v. Norton, 03-55032.
Copyright 2004, Metropolitan News Company