Supreme Court: Mojave Cross Can Stay

It’s been a long, hard battle but free speech won!

The U.S. Supreme Court ruled Wednesday that a cross-shaped veterans’ memorial currently covered up by a box in California’s Mojave Desert can stay right where it is. In a 5–4 decision, the court determined that an act of Congress transferring the land under the memorial to a veterans’ group was constitutional and additionally noted that “the Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.”

Attorneys with the Alliance Defense Fund, Advocates for Faith and Freedom, and the American Legion Department of California filed a friend-of-the-court brief in June 2009 that argued for the lifting of a court order which required the memorial to be covered up. The order was the result of a suit filed by the American Civil Liberties Union on behalf of a former Mojave Preserve employee who claims he was “offended” by the cross.

“The ACLU and its allies should not be able to demolish war memorials based on the objection of one person who can’t seriously claim to have suffered harm from it,” said ADF Senior Counsel Jordan Lorence. “Americans want memorials to our nations’ fallen heroes protected. Congress was doing just that when it transferred the land under this memorial to the veterans’ group that cares for it.”

“A passive monument acknowledging our nation’s religious heritage cannot be interpreted as an establishment of religion,” added ADF Senior Counsel Joseph Infranco. “To make that accusation, one must harbor both a hostility to the nation’s history and a deep misunderstanding of the First Amendment.”

The court’s opinion states, “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.”

In 2001, the ACLU sued the National Park Service on behalf of retired Mojave Preserve Assistant Superintendent Frank Buono, who falsely claimed that NPS denied a Buddhist colleague’s application to install a Buddhist symbol near the memorial. Both the colleague and the story turned out to be fictitious, but Buono, who fabricated the story, himself claimed to be offended by the cross and continued the lawsuit.

Various forms of the memorial cross have existed at the location ever since 1934 when the Veterans of Foreign Wars placed it at its current spot. In 2004, Congress authorized the transfer of the one acre of land under the cross back to the VFW, a private organization, in exchange for five acres of other land. The ACLU argued that the land transfer was unconstitutional, and a district court judge agreed. ADF provided funding for a friend-of-the-court brief on behalf of the National Legal Foundation in an appeal to the U.S. Court of Appeals for the 9th Circuit, which upheld the lower court’s decision. The U.S. Supreme Court agreed to accept review of the case, Salazar v. Buono, and the court heard oral argument on Oct. 7, 2009.

The Defense of Veterans’ Memorials Project spearheaded by ADF, the American Legion Department of California, and Liberty Legal Institute seeks to defend America’s veterans’ memorials from attack in the courts.

Allahpundit ponders on the Stevens’ dissent:

The 2002 injunction barred the Government from “permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.” App. 39. The land-transfer statute mandated transfer of the land to an organization that has announced its intention to maintain the cross on Sunrise Rock. That action surely “permit[s]” the display of the cross. See 11 Oxford English Dictionary578 (2d ed. 1989) (defining “permit” as “[t]o admit or allow the doing or occurrence of; to give leave or opportunityfor”). True, the Government would no longer exert direct control over the cross. But the transfer itself would be an act permitting its display…
In my view, the transfer ordered by §8121 would not end government endorsement of the cross for two independently sufficient reasons. First, after the transfer it would continue to appear to any reasonable observer that the Government has endorsed the cross, notwithstanding that the name has changed on the title to a small patch of underlying land. This is particularly true because the Government has designated the cross as a national memorial, and that endorsement continues regardless of whether the cross sits on public or private land. Second, the transfer continues the existing government endorsement of the cross because the purpose of the transfer is to preserve its display. Congress’ intent to preserve the display of the cross maintains the Government’s endorsement of the cross…
Congressional action, taken after due deliberation, that honors our fallen soldiers merits our highest respect. 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.Neither the Korean War Memorial, the Vietnam War Memorial, nor the World War II Memorial commemorates our veterans’ sacrifice in sectarian or predominantly religious ways. Each of these impressive structures pays equal respect to all members of the Armed Forces who perished in the service of our Country in those conflicts. In this case, by contrast, a sectarian symbol is the memorial. And because Congress has established no other national monument to the veterans of the Great War, this solitary cross in the middle of the desert is the national World War I memorial. The sequence of legislative decisions made to designate and preserve a solitary Latin cross at an isolated location in the desert as a memorial for those who fought and died in World War I not only failed to cure the Establishment Clause violation but also, in my view, resulted in a dramatically inadequate and inappropriate tribute.

It’s a good thing he’s retiring because that “this is the national World War I memorial” argument would be grounds if he wasn’t. I take his point — honoring Jewish, Muslim, Buddhist troops, etc, with a cross is rather insufficiently nuanced — but if the worry is observers feeling influenced by the display, how does Stevens justify the religious symbols on the headstones at Arlington? There’s theoretically no government endorsement problem there since servicemen get to select their own insignias, but (a) it is federal land and (b) seeing so many crosses associated with such valor, even with stars of David and crescents mixed in, is more powerful than some puny cross in the desert. To be clear: I have zero problem with it. Just wondering how JPS squares that circle.

Perhaps the battle isn’t quite over:

“We applaud the Supreme Court for overruling the decisions below, but this battle is not over. This box must come off. No war memorial with religious imagery is safe until the court rules that these memorials, which serve to remember our fallen heroes of the military, are allowed under the Constitution.”

The high court’s decision reversed the U.S. 9th Circuit Court of Appeals and returns the case to a lower court to address the issue of the congressionally mandated transfer of the site where the cross sits to a private interest, the Veterans of Foreign Wars.

“The VFW is grateful the Supreme Court overturned the Ninth Circuit’s decision,” said Joe Davis, public affairs director of the VFW. “As this case now goes back to the court below, this box must come down. This and every veterans memorial should be respected for those it honors, not covered or torn down.”

Mathew D. Staver, founder of Liberty Counsel and dean of Liberty University School of Law, said the issue is bigger than a single monument – or even all the monuments.

“Passive displays like the World War I Memorial, the Ten Commandments, nativity scenes, or statements like the national motto do not force anyone to participate in a religious exercise and, thus, do not establish religion. This case reveals the extremism of the ACLU. For 75 years this cross in the Mojave Desert did not disturb anyone. It stood as a memorial to the heroes of World War I. Removing this memorial would be an insult to our war veterans. Doing so under the guise of the First Amendment is an insult to the framers of the Constitution. For now the cross will remain,” he said.

American Legion:

The cross will remain concealed behind a plywood box for the time being pending a second look at the case at the U.S. District Court level. The High Court remanded the case to the U.S. District Court to give it a chance to see if any other legal alternatives exist. However, the High Court reminded the District Court that: “Respect for a coordinate branch of Government forbids striking down an Act of Congress except upon a clear showing of unconstitutionality.”

So the fight isn’t over, but we can applaud an ACLU defeat and a glass half full! Cheers, and praise God! Wish they would have ruled the entire cross is Constitutional, but it’ll probably come right back to their laps eventually anyway.