April 28, 2010

Court backs Mojave cross deal; case sent back to 9th Circuit

Joe Nelson, Staff Writer
Redlands Daily Facts

A divided U.S. Supreme Court on Wednesday ruled that a lower court erred when it invalidated a land transfer that prompted the veiling of a 76-year-old Latin cross in the Mojave National Preserve honoring fallen soldiers.
In a 5-4 ruling, with the court's conservatives in the majority, justices remanded the case back to the 9th Circuit Court of Appeals in San Francisco to reconsider its decision.

The Supreme Court majority voiced strong support for allowing the nearly 6-foot-tall cross, which has stood in various forms in the Mojave National Preserve for more than 70 years, to stay.

"The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm," Justice Anthony M. Kennedy wrote in his opinion.

The cross, crafted from metal pipe, was erected by members of the Veterans of Foreign Wars in 1934 to honor American soldiers who died during World War I. It sits in an area called Sunrise Rock, about 11 miles south of the 15 Freeway, east side of Cima Road.

"A Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions and patient striving help secure an honored place in history for this nation and its people," Kennedy wrote. "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."

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."

In 2001, the American Civil Liberties Union sued the National Park Service on behalf of retired Mojave National Preserve Assistant Superintendent Frank Buono, who argued the presence of a sectarian religious symbol on public property was not admissable, said ACLU attorney Peter Eliasberg.

Buono argued that the government had showed favoritism to one religion and cited the Park Service's denial of an application to erect a Buddhist symbol near the memorial.

About a decade ago, the land on which the cross sits was incorporated into the Mojave National Preserve by executive order from President Bill Clinton.

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 the land transfer was unconstitutional.

"Although we're disappointed by today's decision, we're encouraged that the case is not over," Eliasberg said in a statement Wednesday.

He said the ACLU will continue to argue that the cross, as it currently stands, does not remedy the government's unconstitutional endorsement of one particular religion.

Joseph Infranco, senior legal counsel for the Alliance Defense Fund, said the Supreme Court's decision sends a strong message to the 9th Circuit court.

"If they do not straighten this out and get it right and allow the land transfer to stand, I'd be surprised if the Supreme Court does not overturn them again and slap their hand a little harder," Infranco said.

The cross has been veiled by plywood for the last several years as the case has wound its way through the courts. It will remain veiled until the 9th Circuit court makes its decision, maybe longer, Infranco said.

San Bernardino County Supervisor Brad Mitzelfelt, a former Marine whose district spans much of the High Desert, applauded the Supreme Court's decision.

"This is great news for the memory of fallen soldiers and for all who treasure this historical landmark in the Mojave Desert," Mitzelfelt said.

Rep. Jerry Lewis, R-Redlands, also praised the high court's ruling.

"Congress has repeatedly voted overwhelmingly to protect the Mojave cross as a memorial to veterans and those who have died to defend our nation, never intending it to be preserved as a religious symbol," Lewis said in a statement Wednesday. "I am gratified that the Supreme Court has upheld the right and authority of Congress to seek these solutions in memory of our veterans."