April 28, 2010

U.S. Supreme Court supports Mojave cross

Desert Sun

A deeply divided Supreme Court revived congressional efforts Wednesday to permit a wooden cross erected in the Mojave National Preserve 70 years ago to remain on the park grounds.

By a 5-4 vote, the justices reversed a lower court decision that had invalidated a federal law designed to let the cross remain, in the face of a challenge that it constituted a government endorsement of religion.

The decision does not reinstate the law, but returns the case to the lower court and strengthens the government’s hand to allow crosses and other religious symbols on public grounds.

“Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message,” Justice Anthony Kennedy wrote of the cross that was put up in 1934 by the Veterans of Foreign Wars to commemorate U.S. soldiers who died in World War I. “Rather, those who erected the cross intended simply to honor our nation’s fallen soldiers.”

Kennedy was joined in the vote - requiring a new hearing and enhancing federal arguments to keep the cross - by the four more conservative justices. Yet they splintered on their legal reasoning, and only Chief Justice John Roberts signed Kennedy’s opinion in full.

Rep. Jerry Lewis, a Redlands Republican whose district includes the site of the memorial, praised the court's decision.

"This is a dramatic victory for those who believe it is vital to preserve the memory of those who gave their lives to ensure the survival of our nation and the freedoms we enjoy," he said in a news release.

Lewis said Congress has voted multiple times to protect the cross and lawmakers did not intend for it to be considered a religious symbol.

“I am gratified that the Supreme Court has upheld the right and authority of Congress to seek these solutions in memory of our veterans," he said.

Dissenting in the case were the Supreme Court’s four liberal justices. “I certainly agree that the nation should memorialize the service of those who fought and died in World War I,” Justice John Paul Stevens, who served in World War II, wrote in his dissent, “but it cannot lawfully do so by continued endorsement of a starkly sectarian message.”

The case began in 2001 when Frank Buono, a retired park service worker, sued the federal government, objecting to the Park Service’s allowing the cross but no other religious symbols at the California site. Park officials had rejected a request for a Buddhist shrine near the cross.

The cross structure at the Sunrise Rock outcropping has been replaced several times since 1934, and the current cross, erected in 1998, is about five feet tall and made of white-painted pipe.

Lower federal courts ruled that the cross at the national preserve violated the required constitutional separation of church and state under the Establishment Clause of the First Amendment. A judge ordered the cross taken down, and the government appealed. The cross has since been covered with a plywood box.

The question before the justices Wednesday was not the validity of the lower court decisions finding a constitutional violation, but rather whether Congress’ law attempting to save the cross was permissible.

Congress designated the cross a national memorial and, in 2004, passed a law calling for the transfer of the property on which the cross at Sunrise Rock sits. Congress ordered the land given to the VFW in exchange for a parcel elsewhere in the preserve.

The U.S. Court of Appeals for the 9th Circuit rejected the effect of the 2004 law, saying it ran “afoul” of a district court judge’s order forbidding display of the cross.

Kennedy said the lower court judge was wrong to concentrate on the religious aspects of the cross.

“A Latin Cross is not merely a reaffirmation of Christian beliefs,” he wrote. “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 said a district court judge was wrong to then dismiss Congress’ motives in the 2004 law “as illicit” and should have more fully considered the context in which the land-transfer statute was passed before concluding that observers would think the cross an endorsement of religion.

“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” Kennedy wrote. “A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgement of religion’s role in society.”

Joining Kennedy in reviving the government’s case in Salazar v. Buono, along with Roberts, were Justices Antonin Scalia, Clarence Thomas and Samuel Alito.

Dissenting along with Stevens were Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

Full text of Supreme Court decision, concurring and dissenting opinions in Salazar v. Buono