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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.

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Justice John Paul Stevens disagreed.

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“In my view the district court was right to enforce its prior judgment by enjoining Congress’s proposed remedy – a remedy that was engineered to leave the cross intact and that did not alter its basic [religious] meaning,” he wrote in a dissent joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Stevens said most judges would find it a clear establishment clause violation if Congress directed that a solitary Latin cross be erected on the National Mall in Washington as a World War I memorial. He said the transfer of land in the Mojave Desert perpetuated rather than cured the government’s endorsement of a religious message.

Kennedy said the district judge should have shown deference to Congress’s prerogative to solve the dispute by weighing opposing interests. He said Congress faced a dilemma of having to balance the court’s injunction to remove the cross against conveying disrespect for the war veterans who erected and maintained the memorial.

“The land-transfer statute embodies Congress’s legislative judgment that this dispute is best resolved through a framework and policy of accommodation for a symbol that, while challenged under the establishment clause, has complex meaning beyond the expression of religious views,” Kennedy said.

The role of religious symbolism

“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.”

He added, “The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.”

In remanding the case, Kennedy’s opinion suggests the federal judge should reassess the issues “in light of the policy of accommodation that Congress has embraced.” It also suggests the judge should consider “less drastic relief than complete invalidation of the land-transfer statute.

In addition, Kennedy says that signs might be appropriate indicating that the cross and the surrounding land are private.

The cross is still standing on Sunrise Rock, but since the court-ordered injunction it has been concealed within a large wooden box.


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