September 29, 2009

The Old Secular Cross?

High Court to Consider Issue of Church-State Separation

Henry and Wanda Sandoz are the unofficial caretakers of the Mojave cross, which is covered in a plywood box, near Cima, Calif. (Robert Barnes - The Washington Post)

By Robert Barnes
Washington Post

MOJAVE NATIONAL PRESERVE, Calif. -- It would be easy to miss among the yucca and Joshua trees of this vast place -- a small plywood box, set back from a gentle curve in a lonesome desert road. It looks like nothing so much as a miniature billboard without a message.

But inside the box is a 6 1/2 -foot white cross, built to honor the war dead of World War I. And because its perch on a prominent outcropping of rock is on federal land, it has been judged to be an unconstitutional display of government favoritism of one religion over another.

Whether the Mojave cross is ever unveiled again -- or taken down for good -- is up to the Supreme Court led by Chief Justice John G. Roberts Jr. Next week, it will get its first major chance to divine the meaning of the First Amendment command that "Congress shall make no law respecting an establishment of religion."

If the court reaches the constitutional issues at hand, all sides agree it could provide clarity to the court's blurry rules on church-and-state separations. It could also carry important implications for the fate of war memorials around the country that feature religious imagery -- the Argonne Cross in Arlington National Cemetery, for instance, or the Memorial Peace Cross in Bladensburg.

The Mojave cross's protectors, which include veterans groups and the federal government, say the symbol is a historic, secular tribute; its original plaque from the 1930s said it was erected to honor "the dead of all wars." They argue that Congress has taken the steps to distance itself from any appearance of endorsing a religious display.

But the American Civil Liberties Union, Jewish and Muslim veterans, and others say government actions have only deepened the problem. In an effort to avoid the lower courts' rulings that it must come down, Congress has designated the site the country's only official national memorial to the dead of World War I, elevating it to an exclusive group of national treasures that includes the Washington Monument and Mount Rushmore.

Congress's actions ensures that "the cross necessarily will reflect continued government association with the preeminent symbol of Christianity," the ACLU said.

It seems an improbable importance for this piece of desert land, where temperatures regularly hit three digits, an hour can go by without a passing car and somewhere nearby is likely to be a Mojave Green, the desert's own highly lethal variety of rattlesnake.

"It's just a little cross in the middle of nowhere," said Wanda Sandoz, who with her husband Henry is the cross's unofficial caretaker. Henry built the cross that currently occupies the spot -- there have been three -- and the Sandozes say they are fulfilling a WWI veteran's dying request to look after things.

Hiram Sasser, a lawyer with the Liberty Legal Institute, which represents the Veterans of Foreign Wars and assists the Sandozes, agreed.

"I always say you have to risk life and limb to be offended by this cross," he said.

It is unlikely the veterans who erected the cross knew or cared that Sunrise Rock was on federal land. World War I vets had flocked to the desert, either for mining opportunities or because doctors had suggested the climate for those with "shell shock" or respiratory problems from the war.

The men started VFW chapters throughout the region, and apparently were drawn to this particular granite outcropping because some looked at the rock's shadings and conjured up the silhouette of a WWI doughboy. The original cross had a plaque, complete with a misspelling:

"The Cross, Erected in Memory of the Dead of All Wars, erected in 1934 by Members Veterans of Foregin [sic] Wars, Death of Valley Post 2884."

That cross is gone, replaced first by a wooden one, and then by one Henry Sandoz erected in 1998, which he copied from studying old photographs.

Despite what supporters say was its secular birth, the cross for years has been the scene of Easter sunrise services, and the challenges began in 1999, when the U.S. Park Service denied an application from a Buddhist to build a shrine nearby. Frank Buono, an assistant superintendent, informed his boss that the presence of the cross violated the Constitution's establishment clause.

Buono is Catholic, but he said he was offended by the religious display on federal land. "The cross is important to me because it is the indispensable symbol of the death and resurrection of Jesus Christ," Buono said in an interview. "But it isn't right that the symbol of my religion, or any religion, be permanently affixed to federal land."

Park officials agreed to take down the cross, but before they could act, Congress and the courts got involved. Congress forbade the Park Service from using any funds to remove the display. A district judge agreed with Buono that he had standing to bring his complaint and that the cross violated constitutional standards. The U.S. Court of Appeals for the 9th Circuit affirmed the decision.

Then Congress declared the site a national memorial, and proposed to cure any constitutional problems by transferring one acre on which the cross stands to the VFW in exchange for five acres owned elsewhere in the preserve by the Sandozes.

But Buono and the ACLU went to court again, and the courts agreed that such a plan would not resolve the constitutionality question. The deal "would leave a little donut hole of land with a cross in the midst of a vast federal preserve," the appeals court said.

While the fighting has gone on, the cross has remained in place. But to comply with the court's ruling, it was covered first by a tarpaulin bag and now by the plywood box.

The Supreme Court has had trouble coming up with an easily followed guideline on religious displays on government land. Instead, it has opted to issue opinions based on the specifics of a case. Thus, the court in 2005 ruled 5 to 4 that a large, granite Ten Commandments monument on the grounds of the Texas capitol, in place for decades and surrounded by other historical markers, could remain. The same day, the court ruled by the same margin that recently installed framed copies of the Ten Commandments in two Kentucky courthouses were unconstitutional.

But changes on the court could make it more difficult for those challenging religious monuments. Justice Sandra Day O'Connor voted to find both displays of the Ten Commandments unconstitutional, but she has been replaced by Justice Samuel A. Alito Jr., who seems more sympathetic to the other view.

"I can't see many votes for removing the cross," said Charles Haynes, an expert on the establishment clause at the First Amendment Center. Justices could short-circuit the constitutional issues by deciding the lower courts were wrong in granting Buono standing to challenge the cross.

President Obama's new solicitor general, Elena Kagan, inherited the case from the Bush administration and intends to argue it herself. She told the court in her brief that Buono no longer lives near the preserve and his objection to the cross -- that it was on federal land -- is remedied by the land swap.

Buono's lawyer, Peter Eliasberg of the Southern California chapter of the ACLU, said Congress's efforts to avoid taking down the cross make it even clearer that it the cross is endorsed by the government. He rejected arguments that the image of the cross was a historical, rather than religious, symbol of sacrifice.

"When the government chooses a cross to recognize the veterans of World War I, which included 250,000 Jews, which included my grandfather, that is an important message and an inappropriate message for the government to send," Eliasberg said.

Wanda Sandoz, meanwhile, is surprised by the legal battle over the monument. "I suppose I can see the point, if I was Jewish or Buddhist," she said recently, as she walked around Sunrise Rock. "But the thing is, we didn't choose the cross -- the veterans did. I guess if they had picked a Star of David, that's what we'd be taking care of today."

The court will hear arguments in Buono v. Salazar on Oct. 7.