By JESS BRAVIN
Wall Street Journal
The cross, originally put up by World War I veterans, has stood for generations in the Mojave preserve. (Associated Press)
WASHINGTON—The Supreme Court blessed congressional efforts to maintain a cross that has stood for generations in California's Mojave National Preserve, reversing lower courts that found the symbol an unconstitutional endorsement of Christianity.
"The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm," Justice Anthony Kennedy wrote for the plurality. World War I veterans first erected the cross as a memorial to fallen comrades, he wrote, and more than religion alone, "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."
The justices split 5-4 along their right-left divide. But they splintered in their reasoning, with conservatives delivering four different opinions and liberals issuing two dissents.
"The nation should memorialize the service of those who fought and died in World War I," Justice John Paul Stevens, the court's only wartime veteran, wrote in dissent. "But it cannot do so lawfully by continued endorsement of a starkly sectarian message."
The cross—estimated at five to seven feet tall—stands on Sunrise Rock in a remote patch of desert. Veterans, some of whom had moved to the region for health reasons, first erected a cross at the site in 1934 and it was often used for Easter services. The current version was assembled from painted metal pipes in 1998 by Henry Sandoz of Yucca Valley, Calif.
In 2000, a retired park-service employee, Frank Buono, complained that the cross's presence violated the First Amendment ban on a government "establishment of religion." Several years of litigation and legislation followed, with Congress taking several steps to protect the cross, including a ban on using federal funds to remove the symbol and a 2002 declaration that it was a "national memorial" dedicated to World War I veterans.
After lower courts found the cross in violation of the Establishment Clause, Congress attempted to end the matter by transferring the property on which it sits to the Veterans of Foreign Wars, in exchange for other property in the region owned by Mr. Sandoz. Lower courts found the land swap itself unconstitutional.
Justice Kennedy, writing for himself and Chief Justice John Roberts, found that lower courts had been too quick to dismiss the land transfer. "Placement of the cross on government-owned land was not an attempt to set the imprimatur of the state on a particular creed," he wrote, but rather "intended simply to honor our nation's fallen soldiers."
Over the decades, "the cross and the cause it commemorated had become entwined in the public consciousness," he wrote. The lower courts were directed to reconsider their decision and weigh alternatives to removing the cross, such as placing signs to indicate the VFW's ownership of the land.
Justices Antonin Scalia, Clarence Thomas and Samuel Alito wrote or joined separate opinions stating their own reasons.
Although the decision could be read to endorse land transfers in similar situations, Justice Kennedy said the court intentionally avoided making any "sweeping pronouncements" on the line between church and state. Due to the "highly fact-specific nature" of the case, it is "unsuited for announcing categorical rules," he wrote.
Justice Stevens's dissent argued that Congress wasn't taking action to memorialize veterans, but rather using their memory to justify maintenance of a religious symbol. He noted that the Mojave cross little resembles the prominent and nonsectarian markers erected for those who served in World War II, Korea or Vietnam.
Justices Ruth Bader Ginsburg and Sonia Sotomayor joined Justice Stevens's dissent. Justice Stephen Breyer dissented separately.