April 28, 2010

Supreme Court Sides With Interior on Mojave Desert Cross

New York Times

The Supreme Court ruled today that Congress and the Interior Department acted properly when they used a land transfer to solve a dispute over a cross on display in the federal Mojave National Preserve.

The case, Salazar v. Buono, stemmed from a 2001 lawsuit challenging a cross erected in 1934 by the Veterans of Foreign Wars. Frank Buono, an Oregon resident who had served as an assistant superintendent in the park and was a regular visitor, claimed the memorial to World War I veterans was unconstitutional because it gave the impression that the government was advancing a particular religion.

By a 5-4 margin, the Supreme Court ruled today that lower federal courts were wrong to dismiss as "evasion" the federal government's effort to transfer the land underneath the religious symbol. Justice Anthony Kennedy wrote the opinion (pdf) for the majority, arguing that the 9th U.S. Circuit Court of Appeals had failed to consider the profound "dilemma" posed by the case.

The Interior Department could not leave the cross in place without violating the ruling that the display was unconstitutional, Kennedy wrote, "but it could not remove the cross without conveying disrespect for those the cross was seen as honoring. Deeming neither alternative satisfactory, Congress enacted the land-transfer statute."

"The statute should not have been dismissed as an evasion, for it brought about a change of law and a congressional statement of policy applicable to the case," Kennedy added.

Congress had authorized a land swap with the Veterans of Foreign Wars, trading 1 acre of land around the cross in exchange for 5 privately owned acres elsewhere in the preserve. Previously overseen by the Bureau of Land Management, the site of the cross came under control of the National Park Service when the 1.6-million-acre Mojave National Preserve was created in 1994.

The white wooden cross, roughly 5 feet tall, stands atop Sunrise Rock in California's San Bernardino County. It has been covered with a large plywood box since a lower court ruled it unconstitutional.

Justice John Paul Stevens dissented today, arguing that the land transfer could itself be considered a promotion of religion. If the land had been privately owned to begin with, he wrote, there would be no question that the statue is permissible under control of the veterans.

"But the Government does own this land, and the transfer statute requires the executive branch to take an affirmative act -- transfer to private ownership -- designed to keep the cross in place," Stevens wrote, joined by Justices Sonia Sotomayor and Stephen Breyer.

In a brief on behalf of Interior Secretary Ken Salazar, Solicitor General Elena Kagan said there was no reason to conclude that the continued presence of the cross would imply government sponsorship. The transfer handed over control to the Veterans of Foreign Wars and required the installation of a plaque dissociating the statue from the federal government, she wrote.

"Congress already has taken steps to end any continuing endorsement," she wrote. "By ordering the Park Service to install a plaque stating that the cross was erected by the VFW to commemorate fallen service members, Congress has required 'a clearly visible' statement of the memorial's secular origin and purpose."