Metropolitan News-Enterprise


Thursday, April 29, 2010


Page 1


High Court Overturns Injunction in Desert Cross Case


From Staff and Wire Service Reports


The U.S. Supreme Court’s conservative majority signaled a greater willingness to allow religious symbols on public land Wednesday, a stance that could have important implications for future U.S. church-state disputes.

By a 5-4 vote, the justices overturned an injunction that would have required removal of a congressionally endorsed war memorial cross from its longtime home atop a remote rocky outcropping in California’s Mojave Desert.

The court directed a district judge to reconsider Congress’ plan to transfer the patch of U.S. land beneath the 7-foot-tall cross made of metal pipe to private ownership.

Federal courts had rejected the land transfer as insufficient to eliminate constitutional concern about a religious symbol on public land—in this case in the Mojave National Preserve.

Narrow Ruling

While the ruling Wednesday was narrow, the language of the justices in the majority, and particularly the opinion of Anthony Kennedy, suggested a more permissive view of religious symbols on public land in future cases.

Federal courts currently are weighing at least two other cross cases, a 29-foot cross and war memorial on Mt. Soledad in San Diego and Utah’s use of 12-foot high crosses on roadside memorials honoring fallen highway patrol troopers.

“The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society,” wrote Kennedy, who usually is in the court’s center on church-state issues.

Speaking of the Christian cross in particular, Kennedy said it is wrong to view it merely as a religious symbol. “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,” he said.

In dissent, Justice John Paul Stevens agreed that soldiers who died in battle deserve a memorial to their service. But the government “cannot lawfully do so by continued endorsement of a starkly sectarian message,” Stevens said.

The cross has stood on Sunrise Rock in the 1.6 million-acre Mojave preserve since 1934, put there by the Veterans of Foreign Wars as a memorial to World War I dead. It has been covered with plywood for the past several years following lower court rulings.

Justice Samuel Alito, part of yesterday’s majority, noted the remoteness of the location. “At least until this litigation, it is likely that the cross was seen by more rattlesnakes than humans,” Alito said, although he also pointed out that Easter Sunday services have long been held there.

Prior Decisions

The controversy began when a retired National Park Service employee, Frank Buono, filed a lawsuit complaining about the cross on what was then public land. Senior U.S. District Judge Robert Timlin of the Central District of California ordered the cross removed, and the Ninth U.S. Circuit Court of Appeals affirmed.

In 2003, before the removal could take place, however, Congress enacted legislation requiring that the land be transferred to the VFW in exchange for another piece of land. Buono challenged the swap as a violation of the earlier injunction, and the lower courts agreed.

Six justices Wednesday wrote separate opinions and none spoke for a majority of the court.

Chief Justice John Roberts signed onto Kennedy’s opinion, while Alito largely concurred but said he would go further and overturn the injunction and uphold the transfer without remanding. Justices Antonin Scalia and Clarence Thomas agreed with the government that the merits did not have to be reached because Buono, in their view, lacked standing.

Buono was once assistant superintendent of the preserve but later moved out of the state. The government argued that because his objection was merely ideological—he said he does not believe that a symbol of a particular religion should be allowed on government property if symbols of other religions are excluded—there was no case or controversy under Article III of the Constitution. 

The case is Salazar v. Buono, 08-472.


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