Riverside County to honor Mojave Cross advocates

Henry and Wanda Sandoz with the Mojave Cross in the background after the Nov. 11 installation ceremony. (David Olson/Staff photo)

by David Olson
Riverside Press-Enterprise

The Riverside County Board of Supervisors Tuesday is scheduled to honor those who helped save the World War I veterans memorial cross in the Mojave Desert east of Baker.

The cross was the subject of more than a decade of First Amendment court battles.

It sits on public land, the Mojave National Preserve, and a former National Park Service employee sued to have it removed, because he saw it as an unconstitutional government endorsement of Christianity. He received backing from the American Civil Liberties Union.

Supporters of the cross argued that it was erected 78 years ago by World War I veterans to honor their fallen colleagues, not to promote religion.

After two federal courts agreed with the ACLU, the U.S. Supreme Court in 2010 ruled that a land exchange, under which the land around the cross was converted into private property, passed constitutional muster.

The Veterans of Foreign Wars now owns the acre under and around the cross. A new cross was installed on the land on Nov. 11, Veterans Day. It’s the latest of several versions of the cross that have stood on the site.

Among those scheduled to be honored Tuesday are Henry and Wanda Sandoz, who had cared for the cross for 30 years and ceded five acres of their land to the national preserve as part of the land exchange.

American Legion District 21, who represents about 4,000 veterans in Riverside County and helped defend the cross, and retiring U.S. Rep. Jerry Lewis, R-Redlands, who first negotiated a land exchange, are also scheduled to be honored.

Supervisor John Benoit will lead the ceremony, Rees Lloyd, director of the California Legion’s Defense of Veterans Memorials Project, said in a news release.

Mojave Cross to return to desert home

National Park rangers to send back cross

Golden Gate National Recreation Area ranger Nijaune Winston stands by the Mojave Cross. The National Park district intends to return the cross to its original locale in the Mojave National Preserve. (Photo courtesy of Golden Gate National Recreation Area)

by Mark Noack
Half Moon Bay Review

National Park Service officials this week took custody of the Mojave Cross with plans to return it to its desert home, one week after the handmade monument was found mysteriously on the side of Skyline Boulevard.

Once found, the cross, a 6-foot steel-pipe structure, was delivered to the Half Moon Bay Sheriff’s substation. Then it was transported to an undisclosed location in the Golden Gate National Recreation Area. GGNRA officials say the cross is being treated as evidence until it is returned to the Mojave National Preserve. Those arrangements are still being made.

Meanwhile, on Sunday, Yucca Valley resident Henry Sandoz, the caretaker of the cross, installed a replacement at the same location as part of a Veterans Day ceremony. The event also marked a successful land trade as a workaround to the delicate church-state issues at play.

Originally erected in 1934 to honor World War I veterans, the Mojave Cross became the target of lawsuits, appeals and court rulings after its surrounding property became part of the National Park system. The cross became a legal pawn in a larger controversy. Civil-rights groups viewed its as a blatant religious display on public land while veterans’ associations defended it as a memorial.

The U.S. Supreme Court issued a 2010 ruling on the matter, but just days afterward the cross was stolen. It remained missing for two years until last week, when a television news crew discovered it lying on the side Highway 35. The cross was wrapped up and had a message asking whoever found it to return it. Sandoz and National Park officials later authenticated it was the same cross stolen in 2010.

Last week, the National Park Service announced it was transferring a small piece of the Mojave National Preserve to the California Veterans of Foreign Wars as a way to resolve the central conflict of the lawsuits.

Cross stands again

The new Mojave Cross after it was installed on Sunday, November 11, Veterans Day. (DAVID OLSON/STAFF PHOTO)

BY DAVID OLSON
Press-Enterprise

MOJAVE NATIONAL PRESERVE -- After more than a decade of First Amendment court battles, a cross stands again in the Mojave National Preserve, for the first time with the legal blessing of the U.S. Supreme Court.

More than 100 people Sunday, November 11, watched as the seven-foot-tall iron cross was hoisted onto and then bolted into Sunrise Rock, which is 12 miles off Interstate 15 about halfway between Barstow and Las Vegas. Then, the commander of the California Veterans of Foreign Wars, Earl Fulk, formally rededicated it.

The Veterans Day ceremony occurred 78 years after World War I veterans erected the cross in honor of their fallen comrades, and 11 years after a lawsuit backed by the American Civil Liberties Union sought to remove it.

The ACLU, representing a former National Park service employee, argued that permitting a cross on public land was an unconstitutional government endorsement of Christianity.

After two federal courts agreed with the ACLU, the Supreme Court in 2010 ruled that a land exchange, under which the land around the cross was converted into private property, passed constitutional muster. The VFW now owns the acre under and around the cross. The land exchange was formally completed Nov. 2.

The ceremony occurred as Riverside discussed a similar land exchange after threats of a lawsuit over the Mt. Rubidoux cross. A military atheist group is objecting to a proposed veterans memorial in Lake Elsinore that includes a cross.

The iron cross that had stood on the Mojave site for years was stolen two months after the Supreme Court decision. It was found Nov. 5, south of San Francisco. A plywood box encased it during years of court appeals.

The cross installed Sunday was a replacement created by one of the cross's caretakers, Henry Sandoz, 73, of Yucca Valley. Sandoz said concrete will be poured inside the iron pipes on another day, to make it harder to steal.

For 30 years Sandoz and his wife Wanda looked after several crosses on the site, those previous either vandalized or stolen.

Wanda Sandoz, 68, said she was overjoyed when she saw the cross finally go up, at last with its legality undisputed.

“I can't even describe it,” she said of her feelings. “It was just wonderful to see it go up and know it's going to be able to stay. That's the best thing.”

The Sandozes traded five acres of their land in exchange for the acre ceded to the VFW.

Sunrise Rock sits amid a sea of Joshua trees just off Cima Road.

Rees Lloyd, a Banning resident representing the American Legion at the ceremony, said the lawsuit against the cross was an attack on religious freedom and involved a memorial that few saw.

“Why would anyone be offended?” said Lloyd, a former Legion district commander who was wearing a white button with a red line through “ACLU.” “You can't see it from the freeway. You have to drive to it to be offended.”

Chuck Wilcox, 47, Henry Sandoz's son-in-law and a Yucca Valley resident, said the years of litigation “was a bigger deal than it should have been.”

“It just seemed ridiculous to me,” said Wilcox, who helped carry the blanket-wrapped cross up Sunrise Rock and then helped raise it. “The whole time I've lived out here, it was just here, part of the landscape.”

The land swap was first negotiated by U.S. Rep. Jerry Lewis, R-Redlands. Congress approved it.

But a federal appellate court ruled against it, saying that transferring one acre of land to the VFW in the middle of the vast expanse of federal park land “will do nothing to minimize the impermissible governmental endorsement” of a religious symbol.

A divided Supreme Court in 2010 overturned that decision.

“The goal of avoiding governmental endorsement (of religion) does not require eradication of all religious symbols in the public realm,” Justice Anthony Kennedy wrote.

During the ceremony, Hiram Sasser, director of litigation for the Texas-based Liberty Institute, which focuses on religious-freedom cases and was involved in the Mojave cross case, talked of the indignities that crosses on the site have been through.

“This memorial has been bagged, it's been torn down and it's been stolen,” he said. “And now it's back, it's up and you're standing on VFW property,” Sasser said to loud cheers and clapping. “It's fantastic.”

A cable surrounds the newly private land, with signs stating that it is VFW-owned property open to the public.

The Sandozes became caretakers in 1983, when Riley Bembry, one of the WWI veterans who erected the cross in 1934, was near death and asked the couple to take care of the cross. Veterans Day was established to honor WWI veterans and now honors all who served in the military.

On a table topped with red, white and blue cupcakes to celebrate the installation of the cross sat a wood-framed black-and-white photo of Bembry. The photo usually is in the Sandozes' living room, near an oak dining room table that Reilly gave to the couple.

“My great friend Riley, he would really be smiling down on us now,” said Henry Sandoz.

“He probably is,” he said with a laugh.

Stolen Mojave cross mysteriously reappears in California

An unsigned note was found taped to the Mojave Memorial Cross, which was found Monday. A new cross is due to be raised atop Sunrise Rock at Mojave National Preserve at 11 a.m. Sunday, followed at 1 p.m. by a re-dedication ceremony. (The Associated Press)

By Henry Brean
LAS VEGAS REVIEW-JOURNAL

A stolen cross that sparked controversy and a Supreme Court case may soon be headed back to its Mojave Desert home after it was left by the side of a road south of San Francisco.

The San Mateo County Sheriff's Office recovered the white metal cross late Monday morning near the town of Half Moon Bay, Calif., more than 500 miles from where it stood for decades before being stolen in 2010.

Based on a tip from a San Francisco television station, deputies found the cross strapped upright to a fence post with an unsigned note taped to it that read: "This cross is an important historical artifact. It is in fact the Mojave cross, taken on the evening of May 9, 2010 from Sunrise Rock in the Mojave Desert. I would be very grateful if you would be so kind as to notify the appropriate authorities of its presence here."

Authorities don't yet know who returned the cross or who stole it in the first place.

Its mysterious reappearance comes just days before a replica was due to be placed atop Sunrise Rock as part of a Veterans Day service.

Long before igniting a constitutional controversy over religious symbols on federal land, the welded steel symbol was mounted to the rock 75 miles southwest of Las Vegas by a group of World War I vets as a memorial to fallen soldiers.

For decades, it served as a site for Easter Sunday services and the occasional veterans event. A handful of volunteers maintained - and occasionally replaced - the cross, which was damaged from time to time by vandals and the desert wind.

The Mojave Memorial Cross, as it came to be known, still stood in 1994 when the 1.6 million acres surrounding it was designated as a national preserve. Three years later, a retired park service employee lodged a complaint about it because he considered it a government endorsement of Christianity.

A pair of lawsuits ensued, and the cross was cast into darkness, spending several years covered by boards like a roadside sign with no writing on it.

In 2010, the U.S. Supreme Court weighed in with a 5-4 decision that cleared the symbol to remain on display while a lower court reconsidered the case.

The cross was stolen two weeks later.

At least twice since then, replicas were placed at the site, only to be taken down by National Park Service employees acting under a court order.

The long legal fight was finally resolved last week, when the park service transferred ownership of Sunrise Rock and the acre surrounding it to the California office of the Veterans of Foreign Wars, a private organization free to erect and maintain a cross there.

In exchange, the park service got five acres of formerly private land inside the Mojave National Preserve.

"We have a solution that honors those who died for their country and honors national parks," said preserve superintendent Stephanie R. Dubois in a statement.

A new cross is due to be raised at the site at 11 a.m. Sunday, followed at 1 p.m. by a rededication ceremony featuring longtime caretakers Henry and Wanda Sandoz and others.

It is unclear whether the original cross will make it back to the site alongside Cima Road, about 12 miles south of Interstate 15, in time for Sunday's event. Authorities in San Mateo County said the recovered cross would be turned over to park service officials in San Francisco.

No matter which cross is raised this weekend, James Rowoldt, CEO of the VFW in California, is just glad the underlying dispute has finally been settled.

"I'm just happy for the Sandozes. I'm happy it's over for them," Rowoldt said earlier Monday, before learning about the cross found near Half Moon Bay. "It's just a happy day for everyone."

A Mojave Desert cross brings a lot of things to bear

The head of the Mojave National Preserve had little reason to think that an exchange over a memorial built in 1934 would spur a 13-year saga full of litigation, vandalism, political theater and theft.

A new cross in the wings
Henry Sandoz hefts a new cross that he made out of 5-inch-diameter pipe. With friends and supporters, he hopes to paint and raise it atop Sunrise Rock by Veterans Day. (Thomas Curwen / Los Angeles Times / September 21, 2012)

By Thomas Curwen
Los Angeles Times

Long before the promise to the dying man, the Buddhist stupa and the Supreme Court decision, there was the land. Once it belonged to no one, then it belonged to everyone, and that's when the trouble with the cross began.

Mary Martin, superintendent of the Mojave National Preserve, read her mail in the morning, and on a spring day in 1999 she picked up a letter signed by Sherpa San Harold Horpa. It sounded like a joke.

Horpa began by describing "a tasteful cross that stands on a small hill." The hill, known as Sunrise Rock, was in the preserve off Cima Road, six miles south of Interstate 15.

Horpa had a special request: He wanted to place another religious symbol on the site.

"I proposed to install a stupa equal in size, color, material and taste to the cross," he wrote.

Martin had to look up what a stupa was — a Buddhist shrine — and that afternoon she composed her reply: "Any attempt to erect a stupa will be in violation of federal law and subject you to citation and or arrest."

Martin was aware of that cross, which was erected in 1934, and she suspected that one day she would have to remove it. But at this point it was a low priority. The preserve was in its fifth year, and she and her colleagues were busy buying property from ranchers, preserving the habitat of the desert tortoise, and converting the old Union Pacific station in Kelso into a visitor center.

She never heard from Horpa again. Nor did she have any reason to suspect that this exchange would begin the 13-year saga that would see the cross on Sunrise Rock become an object of litigation, vandalism, political theater and theft.

Buono and the stupa

Herman Hoops thought writing a letter would be a good way to test the park service's attitude toward the cross. When going up against the government, he recently explained, the last thing you want to present are the facts; they can fight you on the facts.

So he came up with the idea of the stupa.

His friend Frank Buono had been visiting him that spring at his home in Jensen, Utah, just outside Dinosaur National Monument. Buono had first brought up the cross in a conversation about the Mojave National Preserve. Both men — retired park service employees with more than 20 years each — felt that a religious symbol on federal land was wrong.

With the sun setting on the river canyon of Dinosaur, Hoops sat down at his computer, and they began composing. They made the argument for the stupa, "complete with prayer wheels and flags," and Hoops came up with the pseudonym.

When he opened Martin's reply, Hoops wanted to continue with the pretense, but Buono told his friend to hold off. He had contacted the American Civil Liberties Union, which had agreed to investigate the cross to see if there might be a case.

Buono loved the California desert, but the Mojave was special. He had been an assistant superintendent at the preserve for 11 months before budget cuts in 1995 forced him to Joshua Tree National Park.

The year before — as Congress debated the legislation that would create the preserve — he served on a committee to explore the logistics of managing the land. Walking through the halls of the Department of the Interior on his way to a reception after the signing ceremony for the Mojave in October 1994, he says, was the highlight of his career.

"It was like the Vatican for me," he said. "I hold the park agency to the highest of standards — as any citizen should."

When Buono first saw the cross in 1995, he wasn't sure if it was on federal land. The Mojave was a checkerboard of grazing allotments and private holdings, and after retiring, he read the old maps and confirmed his suspicions.

The Sandozes

Martin received the first letter from the ACLU in October 1999, urging that the cross be removed because it was a violation of the 1st Amendment. Ten months later a second letter arrived, this time setting a deadline of 60 days.

By then Martin had researched the cross and had learned about the promise that Henry and Wanda Sandoz made to a sick friend who had maintained it over the years. The Sandozes had agreed they would be its caretaker.

When their friend died in 1984, the cross had been missing for a couple of years, and Henry built a new one. This cross was vandalized, and he finally decided to replace it.

In violation of park regulations, he and Wanda gathered with family and friends at Sunrise Rock on Palm Sunday in 1998. They bolted a cross, made of 5-inch-diameter pipe, to the granite and filled it with concrete. Afterward, they crowded beneath it barbecuing hot dogs.

Because the cross — raised to commemorate veterans of World War I — wasn't the original, Martin felt she had to take it down. But she didn't want to make a decision that would be unpopular among Mojave residents who resented the changes that the park service had brought to their lives.

Martin needed an ally and found one in Rep. Jerry Lewis (R-Redlands). Throughout 2000, Lewis had stayed apprised of the ACLU's complaint. The group's accusation, he wrote, was "ridiculous," and as a member of the House Appropriations Committee, he would take legislative action, if necessary, to save the cross.

By late fall, Martin had exhausted her options, which included a personal appeal to the Sandozes to take the cross down. She drafted a letter for the park service's regional director to send to the congressman. "Absent legislative intervention," it read, Martin would have no choice but to remove the cross.

Two weeks later the congressional budget passed with language introduced by Lewis preventing the use of federal funds to remove the cross. Three months later, the ACLU filed its lawsuit; Buono was a plaintiff.

When a judge in Riverside ruled that the cross couldn't be displayed, it was wrapped in a tarp that was fastened, Houdini-style, at the base by chain and a padlock. After being shredded by vandals, the tarp was replaced by a plywood box.

"It looked like a big Popsicle," said Dennis Schramm, who replaced Martin as superintendent of the preserve in 2005.

Artists painted landscapes that prominently featured the cross. Videos were shot in its shadow. A website was created, and the Sandozes were cast as crusaders.

In the end, the ACLU won. A federal district judge in Riverside ruled that the cross' presence on federal land conveyed an endorsement of religion. His opinion was upheld by the 9th Circuit U.S. Court of Appeals.

The only way the cross could remain was if Sunrise Rock were privately owned. A compromise was arranged: a land swap between the Sandozes and the park service. The California office of the Veterans of Foreign Wars would take ownership of the property around the cross.

But a district court ruled against the compromise. The U.S. Supreme Court eventually took the case and determined that the ruling was flawed. The district court reconsidered and in April approved the transfer. By then the ACLU and Buono had stopped their fight.

Not long after the Supreme Court's decision in 2010, the cross was stolen and was never recovered.

Martin and Buono today

Martin, 61, is retired today and looks back with disappointment on the long turn of events.

"If Buono felt so strong about the cross, if he would have called and discussed it, I am sure we could have reached a solution without litigation," she said. "When I first met with the Sandozes, they were receptive to various solutions, but as the conflict continued, all sides seemed to become more entrenched in their positions."

Buono, 65, works part time for the park service teaching policy and law and is gratified that the courts ruled in his favor, the land swap notwithstanding. He similarly wishes the matter of the cross could have been resolved without going to court and is critical of the park service.

"The agency culture of the NPS is so risk-averse that it borders on paralysis, in particular when confronted with a wildly unpopular decision," he said.

Closed off
Henry Sandoz, 73, examines the cordon that the National Park Service has placed around Sunrise Rock. Sandoz and his wife, Wanda, plan to erect a new cross on the site. (Los Angeles Times / September 21, 2012)

Last July, the Sandozes — Henry, 73, and Wanda, 68 — and a few supporters met park service officials at Sunrise Rock to work out the final arrangements.

With temperatures close to 120 degrees, they walked the perimeter of the property. The park service has allocated $28,121 to pay for a cable to section off the property, signs to designate it as private property and a plaque to identify the cross as a war memorial.

The park service hopes to hand the 1-acre parcel over to the VFW by the first week in November, and the Sandozes plan to commemorate the site by Veterans Day.

Henry Sandoz has a new cross ready. Partly covered by plywood and an old washtub, it lies on the concrete floor of a barn — three pieces of pipe, cut by an acetylene torch, welded together and, as yet, unpainted.

Friendship takes High Desert couple to Supreme Court over controversial cross

Yucca Heights resident Henry Sandoz holds a painting of J. Riley Bembry's encampment, which was several miles away from his World War I memorial cross. His wife, Wanda, holds a painting of the cross. (Jim Steinberg/Staff)

Jim Steinberg, Staff Writer
Redlands Daily Facts

YUCCA HEIGHTS - It was 1974 when two dune buggies with frames made of pipes and powered by Corvair engines roared into a remote encampment in the Mojave Desert where the travelers heard an elderly man lived.

When the recluse in the cabin came out, he was invited to join the group for hamburgers.

"I haven't had a hamburger in six months," said the man, J. Riley Bembry.

And thus began a friendship that would span a decade for Henry and Wanda Sandoz.

Little did the young couple from the tiny community of Mountain Pass southwest of the Nevada state line know that because of this relationship, they would later be enveloped in a legal dispute that would take them into the chambers of the U.S. Supreme Court.

Nor did they have an inkling that Henry would be awarded the highest honor from the U.S. Veterans of Foreign Wars, something that happened last summer at the VFW's annual meeting in San Antonio.

Bembry wanted to be known by his middle name, Riley, not his first name, John, "because he said it was more distinguished," Henry said at the couple's home in Yucca Heights, an unincorporated area near the city of Yucca Valley.

Bembry was an Army medic during World War I, and by some accounts, he also taught soldiers how to use explosives, a skill he would later use to develop mines in the Mojave Desert.

After the war he initially was a butcher in Los Angeles and several neighboring cities. He frequently traveled into the Mojave Desert and over time became hooked on prospecting.

Around the time of the Great Depression, he was living full time in the desert, and an encampment of other World War I veterans grew around his cabin.

Many of them had come to the desert to heal from the various forms of physical and emotional damage caused by the war, the Sandozes said. And in the Great Depression, gold fever wasn't hard to catch.

In 1934, Bembry and some of his neighbors, mostly veterans,put a seven-foot tall wooden cross on a rock outcropping a few miles from his cabin. The site was a granite rock outcropping near Cima Road, about 15 miles south of today's 15 Freeway and 80 miles east of Barstow.

A sign below the cross said, "To honor the dead of all wars erected 1934 by members of Veterans of Foreign Wars, Death Valley Post 2884," according to a history compiled by the office of Rep. Jerry Lewis, R-Redlands.

Death Valley Post 2884 no longer exists.

Last week, an 11-year battle with the American Civil Liberties Union over that cross monument came to an end.

U.S. District Judge Robert J. Timlin in Los Angeles signed an order ending the ACLU lawsuit and paving the way for the original memorial site to be transferred from the federal government to the Veterans of Foreign Wars.

The ACLU had alleged that a cross on federal land violated the separation of church and state.

To make the legal settlement happen, Henry is giving up five acres of Mojave Desert land he has owned for decades in exchange for the one-acre site of the cross on Sunrise Rock, which will ultimately be transferred to the VFW.

"We have been at this a long, long time," said Lewis, who in 2003 championed legislation authorizing the land swap. "People from World War I started this. And people like Wanda and Henry Sandoz and many other marvelous people have stepped up to support this memorial."

Lewis also said, "Few people these days have any idea what the World War I veterans went through in those horrendous times."

Henry recalls the first time he saw the cross in the 1960s. At the time, a railroad boxcar that served as a clubhouse was at the base of the hill. The remains of a concrete patio, once used for dances, were alongside it.

A few miles away, Bembry's compound included an assay office, to determine the quality of his gold and silver samples, and a powder magazine, for dynamite.

He had a propane-powered refrigerator but few other conveniences in his cabin.

Wanda recalled that on that first picnic, she forgot to bring mayonnaise.

Bembry volunteered his opened mayonnaise jar, which had been kept unrefrigerated and was seven or eight years out of date.
"Obviously, we didn't have any," Wanda said.

A "pet" badger lived beneath his cabin for a time, the Sandozes said.

Bembry also fed rabbits, chipmunks and other critters that frequented his cabin, which included a "picture window" made from the windshield of a 1920s Studebaker.

The couple reminisced that once their oldest daughter drove Bembry into Barstow to renew his license for high explosives and to buy more dynamite. And that Bembry's skills as a butcher were appreciated by many during deer season.

Bembry didn't speak much about World War I, Henry said. About the only thing he can recall is that Bembry said he saved soldiers' lives when the 1918 flu pandemic hit camp by giving them whiskey and Bromo Quinine.

Not one soldier taking his "medicine" died in the epidemic, which claimed between 50 million and 100 million people worldwide, Henry recalls Bembry telling him.

Bembry, who took his own "medicine," did not contract this highly contagious flu, even though he cared for many soldiers infected with it, Henry said.

As two roadrunners and numerous quail raced across their backyard, the Sandozes recalled how in the spring of 1983, Bembry showed up at a previous residence near the Molycorp mine where Henry worked, saying he wanted to stay with them for a while because he wasn't feeling well.

"He ended up staying a week," Wanda said.

They didn't realize until much later that Bembry had probably suffered a small heart attack.

In the fall of 1984, Bembry became ill and asked a neighbor to drive him to his daughter's home in Norwalk. The Sandozes kept thinking he would recover, but he never did.

His daughter brought the cremated remains to the Mojave Desert cabin, where more than 100 attended the funeral.

Many at the funeral believed it was time to bring back the sunrise services on Easter, which had been a tradition for decades but had lapsed.

That tradition has continued most years since Bembry's death.

"As a little girl, my wife remembers going to Easter services there," said Pastor Larry Craig, 58, a missionary based in Newberry Springs who for some 27 years has traveled 110 miles to conduct sunrise Easter services at Sunrise Rock.

Although Bembry may not have attended Easter services at the cross he helped install, ranch hands, miners and others from a wide area across the Mojave Desert had a long tradition of attending Easter services at the World War I memorial site, Craig said.

Reflecting on the journey in the long battle to retain the memorial site veterans created in 1934, Henry, 72, said giving up the land wasn't an option.

"I owed it to Riley and to the veterans for all their sacrifices," he said.

Authorities Say Mojave Desert Replacement Memorial Cross Must Come Down

Joe Abrams
FOXNews.com
Associated Press


Apple Valley resident Mark Ware was the first person to see the new cross at Sunrise Rock. (Mark Ware and HighDesert.com)


Authorities say a Mojave Desert war memorial cross that replaced one that was stolen is illegal and must come down.

Linda Slater, a spokeswoman with the Mojave National Preserve, says a maintenance worker spotted the 7½-foot replica cross made of metal pipes on Thursday in a federal park.

The original cross was stolen more than a week ago. It had been the subject of a lawsuit arguing that the Christian symbol didn't belong on public land.

The U.S. Supreme Court temporarily allowed the old cross to stand, but Slater says the new cross isn't covered by the ruling and will be taken down.

The site's caretakers constructed a replacement cross on Saturday. Wanda Sandoz, who has watched over the site with her husband Henry since 1984, said the one put in place Wednesday night is not the one welded by her husband.

Sandoz said the cross that went up overnight is white, but their replica has not been painted yet -- indicating that the replacement could be the original stolen cross or someone else's replica.

"I'm curious as to how they got it up there," Sandoz said, explaining that erecting the cement-filled pipes was a rigorous and difficult process — and would be much harder by the light of a quarter moon.

"It's not like you can dig a hole and put a cross in there. It's solid rock up there," she said.

Thieves used bolt cutters to rip through the inch-thick bolts that had kept the cross in place since 1984. That memorial replaced a wooden cross that was put up in the Mojave Desert in 1934 by veterans of World War I to honor troops who died in battle.

Sandoz said her husband was helped by about five or six ranchers when he put up the metal cross in 1984. "One man couldn't have taken it down, and one man couldn't put it back up," she said.

The Park Service told FoxNews.com on Wednesday that it opposed replacing the stolen cross as long as litigation continues.

A $125,000 reward has been offered for information leading to the arrest of the thieves who took the memorial.

The Mojave cross ruling: a blow to the 1st Amendment

The Supreme Court sends the message the government can treat a Christian symbol as a national emblem and display it on public property.

OPINION
Los Angeles Times

The Supreme Court on Wednesday sent a simple — and disturbing — message in a complicated ruling about an 8-foot cross in California's Mojave National Preserve. The message is that the government can treat the preeminent Christian symbol as a national emblem and display it on public property.

The decision didn't explicitly approve the display of the cross, the successor to one erected in 1934 by a veterans group to honor fallen World War I soldiers. Nor did it render a final judgment on whether Congress acted constitutionally in approving a deal in which the Interior Department would swap the public land on which the cross stands for a privately owned five-acre parcel elsewhere, on the condition that the new owners maintain it as a war memorial. The latter question will be reexamined by the lower court that issued an order against the transfer.

But these technicalities can't obscure the fact that a majority of the justices seem willing to accept Justice Anthony M. Kennedy's assertion in the court's main opinion that "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." At oral arguments in the case, Justice Antonin Scalia made the same point, prompting this devastating response from the lawyer for the former National Park Service employee who challenged the display: "I have been in Jewish cemeteries. There is never a cross on a tombstone for a Jew." Yet more than 3,500 Jewish American soldiers died in World War I.

Conceivably the Veterans of Foreign Wars, which would be responsible for the memorial after the land swap, could obtain congressional approval to add a Star of David or an Islamic crescent to the cross or, better yet, to erect a memorial containing no religious symbols. But they needn't consider such alternatives given Kennedy's conclusion that the cross is a generic tribute to war dead rather than a symbol that sends what dissenting Justice John Paul Stevens called a "starkly sectarian message."

It's distressing that the court seems inclined to uphold the government-sanctioned display of the cross in a national preserve (even if it actually stands on a tiny parcel of private land). More ominously, Wednesday's decision suggests that the court is moving toward what Kennedy in his opinion called a "policy of accommodation" of religious displays — even if the only display is the symbol of a single religion. The 1st Amendment deserves better.

Mojave Cross can stay on display in California

Supreme Court defends public religious symbol

By Valerie Richardson
Washington Times

An 8-foot cross honoring fallen soldiers in the remote Mojave National Preserve in California can stay where it is, because the Supreme Court said Wednesday that the Constitution nowhere requires the "eradication of all religious symbols in the public realm."

Justice Anthony M. Kennedy, writing the lead opinion in a 5-4 decision in which several justices wrote separate concurrences and dissents, compared the Mojave Cross to a hypothetical highway memorial marking the death of a state trooper to make the point that such displays "need not be taken as a statement of governmental support for sectarian beliefs."

"The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society," Justice Kennedy said in his opinion. "Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework."

Leading the dissenters was Justice John Paul Stevens, who called the war memorial "unprecedented" in its starkly religious tone.

"Congressional action, taken after due deliberation, that honors our fallen soldiers merits our highest respect," said Justice Stevens, who recently announced his plan to retire. "As far as I can tell, however, it is unprecedented in the nation's history to designate a bare, unadorned cross as the national war memorial for a particular group of veterans."

The justices didn't rule technically on the constitutional issue of whether the cross constitutes an establishment of religion. However, they declined to rule that the cross was a First Amendment violation, as asked, and the majority justices' language indicate a more benign view of religion expression on public lands.

Instead, the justices sent the case, Salazar v. Buono, back to a lower federal court and told the judge to look again at how the constitutional issues are affected by a congressional plan to transfer the federal land beneath the 8-foot cross to a veterans group. Lower federal courts had said the transfer was insufficient, a finding the justices implicitly rebuked.

Voting with Justice Kennedy in favor of keeping the cross was the court's conservative bloc, Chief Justice John G. Roberts Jr., and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas. Opposed were Justices Stevens, Ruth Bader Ginsburg, Sonia Sotomayor and Steven G. Breyer.

The American Civil Liberties Union filed the lawsuit on behalf of Frank Buono, a former assistant superintendent at Mojave National Preserve, who said that the memorial offended him. The original cross was erected atop an outcropping known as Sunrise Rock in 1934 by World War I veterans.

A federal court ruled in Mr. Buono's favor and ordered the removal of the cross, but Rep. Jerry Lewis, California Republican, inserted language into a defense appropriations bill declaring the cross site a national memorial.

Barstow Veterans of Foreign Wars, thus placing the cross on private land.

The ACLU argued that the land transfer was a calculated effort to circumvent the court ruling, and the 9th U.S. Circuit Court of Appeals agreed, saying the land transfer "would leave a little donut hole of land with a cross in the midst of a vast federal preserve."

But the lower court "did not acknowledge the statute's significance," Justice Kennedy said in his opinion.

"In belittling the government's efforts as an attempt to 'evade' the injunction, the District Court had things backwards," said Justice Kennedy. "Congress's prerogative to balance opposing interests and its institutional competence to do so provide one of the principal reasons for deference to its policy determinations."

The case was sent back to the lower court.

Peter Eliasberg, managing attorney for the ACLU of Southern California, said the organization would continue to argue that the land transfer failed to address concerns over the separation of church and state.

"Although we're disappointed by today's decision, we're encouraged that the case is not over," Mr. Eliasberg said. "The cross is unquestionably a sectarian symbol, and it is wrong for the government to make such a deliberate effort to maintain it as a national memorial."

The Mojave Cross is now encased in a plywood box, hidden from view while litigation is ongoing. The original wooden cross has been replaced several times, and the current version is constructed of white metal.

"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," said Mr. Lewis, whose district includes the desert area where the cross is located.

"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.

The decision came as a victory for religious-freedom groups fighting efforts to eliminate religious symbols and references from the public square.

"A passive monument acknowledging our nation's religious heritage cannot be interpreted as an establishment of religion," said Joseph Infranco, senior counsel of the Alliance Defense Fund, which filed a friend-of-the-court brief defending the cross. "To make that accusation, one must harbor both a hostility to the nation's history and a deep misunderstanding of the First Amendment."

Eric Rassbach, national litigation director of the Becket Fund for Religious Liberty, which also filed a brief in the case, applauded the ruling as "simple common sense."

"The First Amendment guarantees the right to speak and believe freely; it does not give busybodies the right to cut down religious symbols they don't like," Mr. Rassbach said.

At the same time, the ruling leaves unanswered several questions, such as what legal standard should be applied to religious displays on public property, according to the Becket Fund.

The cross supporters had feared that an unfavorable ruling would have jeopardized the nation's hundreds of cross-bearing roadside memorials, as well as other war memorials.

At least two other cross cases are in federal courts. One concerns a 29-foot cross at a war memorial on Mount Soledad near San Diego and the other the 12-foot roadside crosses that Utah uses to memorialize highway patrol troopers killed in the line of duty.

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."

Mojave cross case: a signal on religious symbols

By MARK SHERMAN | Associated Press Writer
San Luis Obispo Tribune

The Supreme Court's conservative majority signaled a greater willingness to allow religious symbols on public land Wednesday, a stance that could have important implications for future church-state disputes.

By a 5-4 vote, the court refused to order the removal of a congressionally endorsed war memorial cross from its longtime home atop a remote rocky outcropping in California's Mojave Desert.

The court directed a federal judge to look again at Congress' plan to transfer the patch of U.S. land beneath the 7-foot-tall cross made of metal pipe to private ownership.

Federal courts had rejected the land transfer as insufficient to eliminate constitutional concern about a religious symbol on public land - in this case in the Mojave National Preserve.

While the holding Wednesday was narrow, the language of the justices in the majority, and particularly the opinion of Anthony Kennedy, suggested a more permissive view of religious symbols on public land in future cases.

Federal courts currently are weighing at least two other cross cases, a 29-foot cross and war memorial on Mt. Soledad in San Diego and Utah's use of 12-foot-high crosses on roadside memorials honoring fallen highway patrol troopers.

"The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society," wrote Kennedy, who usually is in the court's center on church-state issues.

Speaking of the Christian cross in particular, Kennedy said it is wrong to view it merely as a religious symbol. "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," he said.

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," Stevens said.

The cross has stood on Sunrise Rock in the 1.6 million-acre Mojave preserve since 1934, put there by the Veterans of Foreign Wars as a memorial to World War I dead. It has been covered with plywood for the past several years following the court rulings.

Justice Samuel Alito, part of Wednesday's majority, noted the remoteness of the location. "At least until this litigation, it is likely that the cross was seen by more rattlesnakes than humans," Alito said, although he also pointed out that Easter services have long been held there.

The controversy began when a retired National Park Service employee, Frank Buono, filed a lawsuit complaining about the cross on public land. Federal courts sided with Buono and ordered the cross' removal.

In 2003, Congress stepped in and transferred the land where the cross stands to private hands to address the court rulings. But the courts said the land transfer was, in effect, an unacceptable end run around the constitutional problem.

In Wednesday's case, six justices wrote separate opinions and none spoke for a majority of the court.

But supporters of the cross memorials were pleased with Kennedy's language, especially because Alito and Justices Antonin Scalia and Clarence Thomas would have gone further. Chief Justice John Roberts signed onto Kennedy's opinion.

"We know this is just the beginning. Until that box comes off that veterans' memorial, the veterans consider that a disgrace," said Kelly Shackelford, chief counsel at the conservative Liberty Legal Institute in Plano, Texas. He wrote a brief for several veterans' groups.

"We hope that some of the statements of Justice Kennedy go to the bigger issue, attacks on any veterans memorial that has any sort of religious imagery," Shackelford said.

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, called the court's reasoning "bogus."

"It's alarming that the high court continues to undermine the separation of church and state. Nothing good can come from this trend," Lynn said. "The court majority seems to think the cross is not always a Christian symbol. I think all Americans know better than that."

Muslim and Jewish war veteran groups complained in court papers that they view the Mojave cross as a religious symbol that excludes them. The Jewish War Veterans called the cross "a powerful Christian symbol" and "not a symbol of any other religion."

Stevens largely agreed. He called the Mojave cross a "dramatically inadequate and inappropriate tribute." Justices Ruth Bader Ginsburg and Sonia Sotomayor joined his opinion, while Justice Stephen Breyer also dissented.

Supreme Court Sends 'Mojave Cross' Case Back For More Work

By Mark Memmott
NPR

A lower court was wrong to invalidate a plan that would keep the "Mojave cross" on top of a rock formation in what is now the Mojave National Preserve, the U.S. Supreme Court ruled in a 5-4 decision announced this morning.

The court did not directly address the issue that had brought the case national attention: Whether the cross, because it is on federal land, violates the Constitution's ban on government establishment of religion.

Instead, the opinion (written by Justice Anthony Kennedy) focuses on the question of whether lower courts were right in rejecting a plan to transfer control of the land around the cross from the government to the Veterans of Foreign Wars, which placed the cross on the rock in 1934.

"A court may order an injunction only after taking into account all the circumstances bearing on the need for prospective relief," the opinion reads. "Here, the District Court did not engage in the appropriate inquiry. The land-transfer statute was a substantial change in circumstances bearing on the propriety of the requested relief. By dismissing as illicit the motives of Congress in passing it, the District Court took insufficient account of the context in which the statute was enacted and the reasons for its passage."

The case now goes back to the lower courts.

Supreme Court Sends Cross Case Back

by Jeremy Weber
Christianity Today

The Supreme Court ruled 5-4 Wednesday that the much-debated war memorial cross in Mojave National Preserve may remain because Congress' attempted transfer of the plot of land to private hands would resolve any constitutional concerns.

Unsurprisingly, the Court did not directly address the bigger Establishment Clause question of religious symbols on public land, instead ordering a lower court to reassess its challenge to the land transfer solution.

Update: Carl Esbeck tells CT that today's Supreme Court ruling on the Mojave cross is more newsworthy to evangelical church-state watchers than most media have portrayed.

Esbeck, professor of law at the University of Missouri, explains that Justice Anthony Kennedy sent the case back to the district court for additional fact-finding on whether Congress’ purpose in ordering the land swap was religious or secular, i.e. an evasion of the trial court's injunction or an accommodation to those wanting to preserve a war memorial. But Esbeck believes that Kennedy actually says quite a lot about how he thinks a court majority—and hence the Establishment Clause—should handle this kind of religious symbol on government property case.

“It would be a shame for evangelicals to think nothing has changed,” said Esbeck. “The way this will be spun is ‘everything was murky and unclear before, and everything is still murky and unclear.’ That is a way of covering up the loss, because the ACLU victory below was reversed. Are things crystal clear? No. But the ball has moved towards religious symbols on government property not violating the Establishment Clause, and now we know where [Chief Justice John] Roberts and [Justice Samuel] Alito—who are new to the Court—stand.”

“Press releases from the usual crowd probably overstate the scope of the opinion,” said Esbeck. “But it would be wrong to just say this case was not a loss for the ACLU. Kennedy has language that says of course the Roman cross is a Christian cross, but symbols can have multiple meanings, and it is clear in this case that the 70-year-old cross has taken on the message of a war memorial. This language will help the briefs of ACLJ, ADF, etc. And Roberts and Alito signed on to this language in Kennedy’s opinion. Further, Kennedy has never been so forthright on these Establishment issues.”

Esbeck says debate will now shift to whether the congressional purpose in swapping land was religious or not. The case could potentially go all the way back up to the Ninth Circuit and maybe the Supreme Court again, though this process will take years.

The ruling may improve of the odds of religious symbols remaining in public spaces, but Esbeck sees the justifications cited as a mixed blessing.

“I’m not a big fan of religious symbols on government property,” said Esbeck. “I believe there is a detriment because it dilutes the real purpose of the symbol. They’ve taken a symbol of the church and turned it into civil religion. This can be bad for evangelicals because when people look at a nativity scene or a Roman cross, we want people to think of the God of the Bible. If these too become simply civil religion to Americans, it makes the task of evangelism harder for Christians.”

Court Says Cross Can Remain

Mojave Desert Icon Is Deemed More Veterans' Memorial Than Religious Symbol

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.

Supreme Court Sides With Interior on Mojave Desert Cross

By GABRIEL NELSON
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."

U.S. Supreme Court supports Mojave cross

USA TODAY
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

Supreme Court says Mojave cross can stand

In a divided ruling, the justices rule that the 1st Amendment calls for ‘accommodation’ of religious displays on public land rather than strict separation of church and state.

This undated photo shows the memorial known as the "Mojave Cross", on an outcrop known as Sunrise Rock in the Mojave National Preserve. (Liberty Legal Institute, Henry and Wanda Sandoz / Associated Press)

By David G. Savage
Los Angeles Times

Reporting from Washington -- The Supreme Court gave its approval Wednesday to displaying a cross on public land to honor fallen soldiers, saying the Constitution "does not require the eradication of all religious symbols in the public realm."

Speaking for a divided court, Justice Anthony M. Kennedy said the 1st Amendment called for a middle-ground "policy of accommodation" toward religious displays on public land, not a strict separation of church and state.

Kennedy disagreed with judges in California who said U.S. National Park Service officials must remove a small Latin cross from the Mojave National Preserve that had stood since 1934 to honor soldiers who died in World War I. The judges said the display of the cross on public land amounted to a government endorsement of religion.

"A Latin cross is not merely a reaffirmation of Christian beliefs," he wrote. "Here, a 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."

The 5-4 decision told the lower-court judges to reconsider the matter and presumably uphold the display of a cross. Chief Justice John G. Roberts and Justice Samuel A. Alito Jr. joined Kennedy's opinion, and Justices Antonin Scalia and Clarence Thomas agreed separately that the cross can remain on display.

Retiring Justice John Paul Stevens spoke for the dissenters. The government has good reason for "honoring all those who have rendered heroic public service regardless of creed," but it should "avoid endorsement of a particular religious view" in doing so, he said.

Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor agreed.

The Mojave cross has been tied in litigation for years. The case had been watched closely because it was the first church-state-separation dispute to come before the Supreme Court since John Roberts became chief justice.

Radical secularists won't allow a cross in the desert

by Newt Gingrich
Washington Examiner

In the vast desert between Los Angeles and Las Vegas is the 1.6 million acre Mojave National Preserve. Located within the preserve, in an area so remote that an hour can pass between cars traveling by, sits a seven-foot cross on the top of a hill.

There used to be a cross there, that is. Today, the cross is covered by a plywood box, looking for all the world like a blank billboard on a lonely rock outcropping.

The reason the cross is covered is as simple as it is dangerous: The cross is the latest target of radical secularists who seek to drive every manifestation of God and faith from our public spaces, however remote.

That these secularists would target a cross that sits literally in the middle of nowhere speaks to their fanaticism. That they would seek to destroy it speaks to their totalitarianism. For religious freedom to exist anywhere, it seems, is a threat to them everywhere.

For 75 years, what has become known as the Mojave Cross has stood on a remote outcropping in the desert known as Sunrise Rock. The cross was first erected in 1934 by the Death Valley chapter of the Veterans of Foreign Wars to honor the servicemen and -women who lost their lives in World War I.

For more than six decades, the cross stood, as it does at war memorials across the country, in memory of the American war dead. But about a decade ago, a park service employee in the preserve decided he was offended by the presence of a cross on federal land.

With the help of the American Civil Liberties Union, he sued, arguing that the cross violates the constitutional prohibition on government establishment of religion. The 9th Circuit Court of Appeals -- the same court that ruled the words "under God" unconstitutional in the Pledge of Allegiance -- agreed and ordered the cross removed.

But then Congress got involved and came up with a solution. The land the Mojave Cross sits on was transferred from the federal government to the VFW, thus removing the constitutional issue, for some, of a religious symbol on federal land.

But even that solution was not enough for the radical secularists. They've taken the case all the way to the Supreme Court, where justices heard arguments in the case earlier this fall.

It's anybody's guess how the high court will rule or if will rule on the merits of the case at all. But it's clear to the nation's veterans what is at stake.

Literally thousands of other monuments and memorials on public lands display the cross and other religious imagery. If the court finds the Mojave Cross "offensive" for the ACLU and its allies, the crosses and other expressions of religious faith that honor our war dead elsewhere are in jeopardy as well.

It's a tragic irony that the men and women who died protecting our religious freedom may be denied theirs after death.

For the Founders, religious liberty and freedom of religious expression were indispensable supports to political freedom. But for the radical secularists, the truth is just the opposite: They see religious freedom as an obstacle to their political project to remake America into something our Founders wouldn't recognize.

We've seen this kind of totalitarianism before. As we relate in our upcoming movie about Pope John Paul II and the end of communism in Eastern Europe , communists sought to systematically eliminate the cross in Poland in order to better control the Polish people.

As we enter the Christmas season, it's important for Americans of all religious faiths to understand how important a cross in the desert -- a cross they may never see -- is to the survival of our liberty.

We are a nation founded on the truth that our rights come from God, not government.

If we give a handful of radicals and an imperial judiciary the power to decide that they, not our Creator, grant us our rights, we will be giving them the power to take our rights away.

Former Speaker of the House Newt Gingrich has published 19 books, including 10 fiction and nonfiction best-sellers. He is the founder of the Center for Health Transformation and chairman of American Solutions for Winning the Future. For more information, see newt.org. His exclusive column for The Examiner appears Fridays.

The many meanings of a cross

Opinion

The dispute over a cross in the Mojave points to how entangled religion and culture are.

By Gregory Rodriguez
Los Angeles Times

I'm all for the separation of church and state. I believe that government endorsement of any particular religious sect or tradition has a corrosive effect on both the state and the faith in question. But I also think the attempt to separate religion from government is veering toward a foolish, parochial and ultimately impossible quest to separate religion from culture.

Last week, the ACLU of Southern California's Peter Eliasberg argued the case of Salazar vs. Buono before the U.S. Supreme Court. The case, which involves a cross that has stood, in various forms, for 75 years as a memorial to World War I veterans in the Mojave Desert, elicited a heated exchange between Eliasberg and Justice Antonin Scalia.

In a debate over whether the cross, which is on property surrounded by the Mojave National Preserve, violates the 1st Amendment ban on the establishment of religion, Eliasberg argued that a cross "is the predominant symbol of Christianity" that "signifies that Jesus is the son of God and died to redeem mankind from our sins." Therefore, it shouldn't be allowed to "stand alone" as a war memorial in a national park. Scalia offered a different definition. "The cross is the most common symbol of the resting place of the dead," he said. The Times reported that Scalia "sharply disagreed" with Eliasberg.

Eliasberg responded: "I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew," he said.

Scalia wasn't persuaded: "I don't think you can leap from that to the conclusion that the only war dead that the cross honors are the Christian war dead. I think that's an outrageous conclusion."

I see Eliasberg's point, but Scalia's notion that the cross has become a generalized symbol of memorial strikes me as true too. Sure, you might suspect that Scalia, a practicing Roman Catholic and a well-known conservative, is simply seeking an argument that would allow the cross in this case to pass constitutional muster, but he's also accurately pointing to how entangled religion and culture are.

Eliasberg's reading that the cross has a specialized religious significance symbolizing the son of God who died for mankind's sins seems way too narrow an interpretation. Does it mean that? Yes. Does it have other significance? Absolutely.

Consider another common symbol, the Star of David. It is a symbol of Judaism, but it is also an ethnic, national and political symbol. It'd be hard, then, to say that its significance is entirely spiritual or theological.

Sometimes, religious symbols have historical significance that in some contexts can transcend their theological meaning. Five years ago, under threat of a lawsuit by the ACLU, the Los Angeles County Board of Supervisors voted to remove a cross from the county seal. In the iconography of the seal, which had a number of symbolic images on it, the cross stood for the Catholic missions whose founding in the late 18th century signaled the dawn of modern Los Angeles history. But the ACLU claimed it represented "an impermissible endorsement of Christianity by the county government." The supervisors didn't fight it, but they should have.

In his 1996 book, "The Truth of Broken Symbols," philosopher and theologian Robert C. Neville observed that in predominantly secular societies, religious symbols often lose their theological specificity and become broadly generalized. In fact, he points to the American military cemetery in Cambridge, England, where a "sign explains that a Star of David on a tombstone signifies the grave of a Jewish soldier whereas a cross signifies 'all others.' " Likewise, he notes that "clergy blessing governmental ceremonies are performatively invoking divine aid by their very presence but are likely to pray in terms so general as not to be specific to their own religion's symbol system."

Culture is moving toward greater syncretism, something you can see in the increase in interracial marriage and the election of a black president. As for religion, a recent survey found that Americans who don't identify with any religion -- now 15% overall and 22% of all adults ages 18 to 29 -- make up the fastest-growing religious "tradition" in the country.

The problem with the ACLU's approach to religious symbols is that it's zero sum and old school -- it is, dare I say it, puritanical. Its narrow vision could rob the public sphere of symbols we need to understand who we are, what we're about and where we came from.

The truth is that even as we become a more secular country, religion will continue to be an integral part of our society, history and culture. Indeed, our very notions of politics and good government are the legacy of zealously religious people. Even our ideals of religious freedom and church/state division have roots in the theological convictions of Colonial and Revolutionary-era Baptists and Presbyterians as much as in the Enlightenment. Even if we don't as a nation profess one faith or another, religion is at the core of American identity. To seek to root it out of civic life and culture altogether is not only impossible, it's silly.

Cross comes before court

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


By BEN GOAD
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."