It is well known that you can't put a cross up on government property. Such a religious symbol on federal land would suggest an endorsement of religion in violation of the First Amendment's mandated separation of church and state.
But what happens when the cross in question has been on the same remote hilltop in a federal preserve in the Mojave Desert since 1934?
On Wednesday, the US Supreme Court takes up a case involving not just a cross in the desert, but a host of thorny issues that could significantly change the national debate over religious symbols and monuments erected on government property.
Among key questions is whether ordinary citizens have legal standing to police potential government violations of the First Amendment's establishment clause.
The justices are also expected to examine whether federal judges overstepped their authority when they refused to acknowledge an act of Congress transferring the cross and its surrounding hilltop to a private landowner in a land swap.
The cross was first placed on the hill 75 years ago by the Death Valley post of the Veterans of Foreign Wars as a memorial to fallen service members during World War I. The veterans neither sought nor obtained permission to place the cross on federal land. For years, the ad hoc memorial went unchallenged.
That changed in 2001, when Frank Buono, a former National Park Service employee, filed suit alleging that a cross on federal land violated the First Amendment's mandated separation of church and state.
A federal judge agreed and ordered the cross removed. While the appeal was pending, Congress entered the fray. In an effort to rectify the establishment-clause violation, Congress authorized a land swap – the one-acre hilltop site plus the cross in exchange for five acres of private land elsewhere. The idea was that if the cross was on private land – albeit surrounded by a federal preserve – the cross would no longer violate the establishment clause.
Both the federal judge and a federal appeals court disagreed. A panel of the Ninth Circuit Court of Appeals ruled that the continued presence of the cross on the hilltop sends a message of government endorsement of a particular religion. The appeals court affirmed the federal judge's order that the cross be removed.
In an appeal to the Supreme Court, Solicitor General Elena Kagan said that Mr. Buono lacks legal standing to bring an establishment-clause challenge. She said he does not object to the cross itself. Instead, his contention is that the government should allow other religious symbols to be displayed near the cross.
Ms. Kagan says that the cross offends his view of the Constitution, as opposed to being an infringement of his religious views.
The federal courts, Kagan also argues, were wrong not to recognize that the land swap had eliminated the establishment-clause issue.
Buono's lawyers counter that the land swap did not erase the establishment-clause violation because the government continues to exert control over the site of the cross. In addition, the government continues to follow a policy of "favoritism" toward the cross and its sponsors, says Peter Eliasberg of the ACLU Foundation of Southern California, which is representing Buono.
Pending the outcome of the case, the cross remains atop Sunrise Rock. But as ordered by a federal judge, it is concealed within a plywood box.
At the high court Tuesday
Click here to read about the animal cruelty case that the Supreme Court heard. The central question: Are dog-fighting videos free speech?
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