April 12, 2007

9th Circuit to decide 'Mojave Desert Cross' fate

Ed Thomas

The National Legal Foundation and its attorneys are awaiting a decision from the 9th U.S. Circuit Court of Appeals following Monday's hearing on a case challenging the right of a World War I memorial cross to remain on public land in the middle of the Mojave Desert.

In the case of Buono v. Kempthorne, the
National Legal Foundation (NLF) is fighting the American Civil Liberties Union (ACLU) in an effort to save the Mojave Desert Cross. The large, white memorial cross has been located on Sunrise Rock in the Mojave National Preserve near the California-Nevada border since 1934, when it was given and erected by the Veterans of Foreign Wars.

Attorney Joe Infranco is with
Alliance Defense Fund (ADF), which argued an amicus brief for NLF at Monday's hearing. He says one of the last acts of Bill Clinton's presidency was his executive order authorizing the establishment of the land the cross stood on as a federal preserve.

"The ink was barely dry, and a local ACLU affiliate was filing a lawsuit," Infranco notes. The lawsuit challenging the monument's constitutionality alleged that its placement on federal land in the Mojave Desert violated the First Amendment's guarantee of separation of church and state and that the memorial cross should therefore be removed.

Supporters of the Mojave Desert Cross hoped to reach a settlement of the suit with the Department of Defense's transfer of the memorial land to private ownership in 2004. However, the ACLU claimed before the 9th Circuit that the property transfer was invalid -- a point ADF helped dispute in this week's appeals court hearing.

Such transfers already have legal precedent in several federal court cases, the ADF attorney notes. He says a number of federal appellate courts have already held that government property may be transferred to private ownership to prevent challenges based on the Establishment Clause, which, he notes "is that part of the First Amendment that is cited as the basis for the so-called separation of church and state." Although the jurisdictional circumstances were different, ADF recently helped defend a similar land transfer to save San Diego's Mount Soledad Cross in California.

Based on the precedents cited in the amicus brief, Infranco says ADF and the other cross supporters in Buono v. Kempthorne are hoping their argument that the transfer of the WWI memorial cross to private ownership was legal will prevail.

Surreal Mojave Cross video