Supporters of an eight-foot-tall cross on a hilltop in the Mojave Desert are hailing a US Supreme Court decision to overturn a lower court order that the cross must be removed from federal land because it violated the separation of church and state.
The high court on Wednesday in a 5-to-4 decision instructed the district court to reexamine the issue, including a land-swap authorized by Congress that would convert the land around and under the cross to private property.
The federal judge had earlier rejected that possible legislative solution as an illicit attempt to evade a court order.
“We applaud the Supreme Court for overruling the decisions below, but this battle is not over,” said Kelly Shackelford, president of Liberty Counsel, an advocacy group that is representing the Veterans of Foreign Wars and other military service organizations seeking to keep the cross in its present location.
The cross was erected in 1934 on federal land in the Mojave National Preserve. It was built and maintained by private veterans groups as a memorial to fallen service members in World War I.
A win for war memorials with religious imagery
After a legal challenge, a federal judge ruled that a cross on public land violated the First Amendment’s prohibition of government endorsement of religion. He ordered the cross removed. An appeals court agreed.
As the appeals proceeded, the cross was covered in a plywood box.
“It is a disgrace that this memorial to our fallen veterans has been covered in a box of plywood for ten years while the case made its way to the US Supreme Court,” Mr. Shackelford said. “This box must come off.”
He added, “No war memorial with religious imagery is safe until the court rules that these memorials … are allowed under the Constitution.”
Justice Anthony Kennedy offered veterans some encouragement in his 19-page plurality decision. “The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society,” he wrote.
Kennedy added: “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.”
What about separation of church and state?
Opponents of the Mojave cross expressed disappointment at the high court’s action on Wednesday, but pledged to keep fighting for removal of the cross.
“We will continue to argue that the land transfer did not remedy the violation of the establishment clause,” said Peter Eliasberg of the American Civil Liberties Union of Southern California, who argued the case before the high court.
“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,” he said in a statement.
The Rev. Barry Lynn of Americans United for Separation of Church and State said he was “very disappointed” in the Supreme Court’s decision. “It’s alarming that the high court continues to undermine the separation of church and state. Nothing good can come from this trend,” he said.
“The court majority seems to think the cross is not always a Christian symbol,” Lynn said. “I think Americans know better than that.”
“The court has sent a message that the mere existence of a religious symbol in a public place does not create a constitutional crisis,” he said.
Others disagree. “It’s clear the government was willing to do anything it took in order to keep the cross in the middle of federal land,” said Roy Speckhardt, executive director of the American Humanist Association. “Now we’ll almost certainly see such shady tactics put to use again.”