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Vets win Supreme Court victory in ‘Mojave cross’ case

The cross on a desert hilltop in the Mojave National Preserve in California has stood since 1934. Opponents say having the Mojave cross on public land violates the constitutional prohibition on government endorsement of religion.

By Staff writer / April 28, 2010

Sgt. Zachary Thomson and Sgt. James Kelly, on leave from duty in Iraq, place a memorial wreath at a cross in the Mojave National Preserve. The cross, a memorial to fallen World War I service members, is covered with plywood because of a legal dispute over placement of a religious object on federal land.




A veterans group has moved a few steps closer to winning its fight to keep an eight-foot-tall cross on a Mojave Desert hilltop as a memorial to fallen World War I service members.

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The US Supreme Court on Wednesday directed a federal judge in the long-running dispute to reexamine an earlier order that would force removal of the cross.

The 5-to-4 decision left the high court sharply divided over the proper framework to resolve the dispute. But it suggests that five justices believe the cross should remain at its current location, where it has stood since 1934.

The case, Salazar v. Buono, began when a former National Park Service employee, Frank Buono, filed a lawsuit challenging the location of the cross on public land within the Mojave National Preserve. The suit said the presence of a religious symbol on federal land violated the First Amendment’s prohibition on government endorsement of religion.

A federal judge and federal appeals court panel agreed and ordered the cross removed.

Congress ordered public-private land swap

Congress responded by transferring the public land around the cross to private owners while accepting similar private land for the preserve in return. The action sought to make the cross’s location on Sunrise Rock a sanctuary of private property within the public preserve, thus eliminating or reducing any perception of government endorsement of religion.

The federal judge was not persuaded. The judge ruled that Congress was merely attempting to evade the court’s earlier order that the cross be removed. The court then issued a permanent injunction blocking the government from implementing the congressionally authorized land swap.

It is that injunction that the high court reversed on Wednesday.

“The district court did not engage in the appropriate inquiry,” Justice Anthony Kennedy wrote in a plurality decision.

“By dismissing Congress’s motives as illicit, the district court took insufficient account of the context in which the [land swap] statute was enacted and the reasons for its passage,” Kennedy wrote.

“Private citizens put the cross on Sunrise Rock to commemorate American servicemen who had died in World War I,” he said. “Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message.”