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.
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.”
Justice John Paul Stevens disagreed.
“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.