October 5, 2009

Cross comes before court

MOJAVE PRESERVE: Some argue that the sacred salute to soldiers is not constitutional.

Riverside Press-Enterprise

A cross was erected atop Sunrise Rock in the Mojave National Preserve years ago to honor the war dead. (AP photo)

For three quarters of a century, a cross has stood high atop an outcropping of rocks in a far-flung and sun-blasted expanse of San Bernardino County's High Desert.

It was erected by a band of veterans as a tribute to the nation's war dead. It was protected for decades under a solemn promise made to the last living member of the group that built it. It was preserved by acts of Congress orchestrated by Inland Rep. Jerry Lewis.

But should a cross be allowed to stand above public land in the Mojave National Preserve?

That question, the root of a years-long fight over the constitutionality of the cross, may soon be answered. The U.S. Supreme Court will take up the case Wednesday. Their ruling could have far reaching implications on similar memorials around the country and could signal the newly refigured court's position on the constitutional provision prohibiting the federal government from endorsing any religion.

The justices could choose to limit their scope to the Mojave cross in particular. Previous court rulings found the cross is a violation of the Constitution and must come down.

The Supreme Court will address whether a land swap between the government and private landholders that transferred ownership of the land under the cross to a veterans group fixed that violation.

But the court could also revisit the question about whether religious symbols are permitted on public land, said Peter Scheer, executive director for the California-based First Amendment Coalition.

"The law in this area is anything but clear," Scheer said. "This could be huge."

A pledge kept

The white 7-foot cross is simple in its construction: four-inch diameter iron piping lashed together, welded and bolted to rock. Under court order, it stands shrouded within a plywood box. Pending the outcome of the case, either the cover will be removed, or the cross will come down.

The original memorial was constructed in 1934 by a small group of World War I veterans working as miners in the area. Among them was John "Riley" Bembry, a butcher by trade who settled after the war in a cabin in what now is the Mojave National Preserve.

Bembry made it his job to maintain and preserve the cross. The High Desert is home to the Fort Irwin military training center and the Marine Corps Air Ground Combat Center at Twentynine Palms. Gen. George Patton trained his troops in the Mojave Desert and some say tracks from their tanks can still be found.

The cross became a meeting place for military men and their families who made the desert their home, said Lewis, R-Redlands, who became acquainted with the cross about 40 years ago when he was elected to the state Legislature and represented the area. Beyond Easter services, a longstanding tradition at the site, people would routinely gather there for meals served out of an old boxcar, he said.

"It was a way that veterans could come together and tell war stories," Lewis said.

It was over one such meal in 1972 that Bembry met Henry and Wanda Sandoz, who then lived in Mountain Pass. Henry, a miner, and Wanda, a school bus driver, grew close to Bembry, who became a grandfather figure to the couple's children.

Near death in the early 1980s, Bembry broached the subject of the cross in a conversation with Henry Sandoz.

"He knew that his time was short and it was important to him that it be looked after," Wanda Sandoz said. "And he knew Henry was a man of his word."

In the 25 years that followed, vandals more than once tore down various wooden incarnations of the cross. Each time, Sandoz, now 70, replaced them, finally erecting the current metal cross.

Neutrality needed

Frank Buono had just become the first assistant superintendent of the newly created Mojave National Preserve. It was 1995. Until the year before, the sprawling 1.6 million acre territory had been known as "unreserved federal land." ." Such had been the case since it was ceded by Mexico to the United States in 1848.

Buono was driving, taking stock of the reserve, when he spotted the cross looming above the formation known as Sunrise Rock. After some thought, he said, it didn't seem right to have a religious symbol on public land.

"I'm not offended by a cross, per se -- I'm a Christian and I have crosses in my house and in my church," said Buono, 62.

Rather, he said, he felt the cross' very existence on national land amounted to an improper endorsement of a single religion.

Soon after, Buono made a call to the American Civil Liberties Union of Southern California. The organization agreed and, together with Buono, filed a lawsuit seeking removal of the cross.

The cross' defenders say it honors all Americans killed on the battlefield. Peter Eliasberg, the attorney who on Wednesday will argue the case on behalf of the ACLU and Buono, described the government's endorsement of the cross as clear favoritism.

Eliasberg said many Jewish soldiers fought for the U.S. military in World War I.

"To pretend that you can say 'this represents all of you -- this honors all veterans,' when it (the cross) is the pre-eminent symbol of Christianity, is not what the government should be doing," Eliasberg said. "We should be honoring all veterans, not some veterans."

Led by Lewis, Congress in 2001 designated the cross a National Memorial. The designation has been awarded to fewer than 50 memorials around the country, including Mount Rushmore and the Lincoln Memorial.

That the cross remains the only national memorial to World War I further shows the government's endorsement of the symbol, Eliasberg said.

Legislative manuevers

Eliasberg will attempt to convince the court that the question of whether the cross should stand on public land is outside the parameters of the case now before the Supreme Court. That issue, he said, is already resolved.

In 2002, the United States District Court Central District of California ruled that Buono was right and that the cross must come down. A federal appeals court later backed that decision.

But while the appeal was pending in 2002, Congress passed a spending bill to which Lewis had added an amendment prohibiting the government from spending any money to remove the cross.

Lewis acted again in 2003, brokering a land exchange under which an acre of land on which the cross stands was transferred from the federal government to a Barstow post of the Veterans of Foreign Wars. In exchange, Sandoz, who now lives in Yucca Valley, agreed to give to the government five acres of land within the preserve.

While the case is known as Buono v. Salazar, for Interior Secretary Ken Salazar, it is Lewis who has led the government's defense.

"Congressman Lewis did everything in his power, to his credit or his discredit, to preserve this cross," Buono said.

In 2007, the 9th U.S. Circuit Court of Appeals ruled that the land swap didn't solve the problem, concluding that merely "carving out a tiny parcel of property in the midst of this vast preserve -- like a donut hole with the cross atop it -- will do nothing to minimize the impermissible governmental endorsement" of a religious symbol.

It is that question that the Supreme Court has agreed to consider, Eliasberg said.

Much at stake

But the government maintains that the 2007 ruling was improper because there was nothing wrong with the cross' presence in the first place, an argument that opens the door for a broader discussion of the laws relating to the separation of church and state.

Solicitor General Elena Kagan, who will argue the case on behalf of Salazar, also contends that Buono had no right to sue since he is not offended by the cross itself and has not suffered any injury.

If the court agrees, the ruling could curb all future lawsuits from citizens challenging government-sponsored nativity scenes, displays of the Ten Commandments outside courthouses, or any other religious imagery, Scheer said.

But if the cross is ordered down, the decision could lead to the removal of treasured memorials on historic battlefields or national cemeteries around the United States, according to a coalition of veterans groups rallying behind the Mojave cross.

"If a 7-foot cross in the middle of the desert can't be allowed to stand, what do you do with the 24-foot cross in the Arlington National Cemetery?" asked Kelly Shackelford, chief counsel for Liberty Legal Institute, a Texas-based firm that filed a brief in the case on behalf of the veterans groups.

Weighty as those questions may be, for Henry and Wanda Sandoz, the small plywood-encased cross in the middle of the desert is precisely what's at stake when arguments begin Wednesday morning.

"That stupid ugly box -- we hate that box," Wanda Sandoz said. "But in our mind's eye, we can still see what's inside."