Supreme Court: Keep the Cross

An important First Amendment religion case is now before the Supreme Court. The high court has agreed to hear a case out of California where a cross has been displayed in the Mojave Desert for since the 1930’s.

The federal government asked the Supreme Court to take the case and overturn a decision by the U.S. Court of Appeals for the Ninth Circuit that ordered the removal of the cross after rejecting a move by Congress to transfer the ownership of the land upon which the cross sits to a private party.

This is a case where the Veterans of Foreign Wars erected a cross more than 70 years ago to memorialize fallen service members in a remote area that is now part of a federal preserve. Nearly a decade ago, Congress designated the cross and an area of adjoining property as a national World War I memorial.

A lawsuit was filed challenging the cross and, after the federal district court held that the federal government’s display of the cross violated the Establishment Clause, Congress directed the Department of the Interior to convey one acre of property that included the memorial to the VFW in exchange for a five-acre parcel of equal value. But the Ninth Circuit determined that the cross – and the land transfer – violated the Establishment Clause.

When the appeals court denied the government’s petition to rehear the case, five judges dissented and noted that the Ninth Circuit’s decision was in conflict with decisions of the Seventh Circuit regarding the government’s authority to sell land. The dissenters also stated that the cross has the secular purpose of memorializing fallen soldiers.

Some of the legal issues involved in this case are similar to issues in an ACLJ case currently pending before the Supreme Court. The ACLJ case, Duchesne City v. Summum, is being held by the high court pending the decision in the Pleasant Grove City v. Summum case, which I argued before the high court in November. In that case, the ACLJ represents the city of Pleasant Grove, Utah and had asked the high court to overturn a decision by the U.S. Court of Appeals for the Tenth Circuit that ordered Pleasant Grove City to accept and display a monument from a self-described church called Summum because the city displays a Ten Commandments monument donated by the Fraternal Order of Eagles.

This new case now before the court (Salazar, Secretary of the Interior, et al., v. Buono) is certainly likely to generate a lot of attention in the media and in legal circles, it will also play an important role in determining the constitutionality of religious displays and the proper role of the government and its actions.

We’ll file an amicus brief with the high court in this case asking that the cross remain in place. The land transfer in this case is both appropriate and constitutional. There’s nothing wrong – or unconstitutional – with the government transferring property containing symbols with religious significance to private parties. It’s our hope that the high court will conclude that the long-standing display of this cross should stay in place and that the action by the federal government represented a constitutionally-sound solution.