High Court Hears Religious Symbol Case

The U.S. Supreme Court took on a long-running legal fight Wednesday over an 8-foot cross in the Mojave Desert. The court heard arguments on whether the cross, which was erected on federal parkland as a war memorial, violates the rights of those who are offended by its religious symbolism.

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And I'm Melissa Block.

The topic today for the Supreme Court was a white cross five feet tall. It was erected high on top of an outcropping of rocks on a huge national land preserve in the Mojave Desert. The case tests when a religious symbol placed on government land violates the Constitution by favoring one religious view.

Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: The Veterans of Foreign Wars put up the cross without permission in 1934 to honor World War I soldiers. It has since been rebuilt twice by private citizens. In 1999, when a Buddhist asked for permission to erect a shrine nearby, the park service said no. That set in motion a series of events in the courts and Congress, culminating today in the U.S. Supreme Court.

When the lower courts ruled that the cross unconstitutionally favored one religious view, Congress designated the cross as the only national memorial to World War I soldiers, and it transferred to the VFW the acre of land on which the cross stands on condition that the memorial be maintained. The lower courts ruled that it was in illegal end-run, and the government appealed to the Supreme Court.

Jim Sims, the national commander of the Military Order of the Purple Heart, was one of many veterans at today's argument supporting the cross.

JIM SIMS: Our concern as veterans is not just a single cross, but it's every memorial to veterans whether it's in my home state of Washington or here on the Washington Mall.

TOTENBERG: But the ACLU's Peter Eliasberg countered that the World War I Memorial in the Mojave Desert is unlike other war memorials because it's a lone cross with no other religious symbols nearby.

PETER ELIASBERG: To say that a cross represents the sacrifices of the 250,000 Jews who fought for this country in World War I is simply not true.

TOTENBERG: Inside the court room, most justices seemed to accept that because the Bush administration did not appeal the lower court decisions, declaring the cross unconstitutional, the only question before the court is whether the federal government's land transfer was an illegal dodge.

Solicitor General Elena Kagan conceded there are limits to how the government can transfer land for a memorial. For example, it would not be permissible if the cross still looked to be on public land.

Chief Justice Roberts: Why isn't that the case here? Answer: Because this area is riddled with private holdings. Eighteen hundred private plots dotted all over the 2,500-square-mile preserve. So tomorrow, she said, 1,000 crosses could go up and nobody would know whether they were on private or public land.

Arguing against the cross was Peter Eliasberg of the ACLU. He faced close questioning from two justices, Samuel Alito and Antonin Scalia. Alito suggested that the court should take the government at its word that it had jettisoned any connection to the cross. Justice Scalia went further. I will stipulate, said Scalia, that the government was trying to arrange it so that the cross could remain there, but that doesn't mean it's invalid.

Answer: It's invalid because the government didn't act in a neutral way. It didn't put the land up for bid. It gave the land to the group it had already favored. It designated the cross as one of 49 national memorials and it conditioned the land transfer on maintaining the cross.

W: The cross doesn't honor non-Christians who fought in the war? Where does it say that? Answer: It doesn't say that. But the cross is the predominant symbol of Christianity.

D: The cross is the most common symbol of the resting place of the dead. What would you have them erect, some conglomerate of a cross, a Star of David and a Muslim half moon and star? Answer: The cross is the most common symbol of the resting place of Christians. I've been in Jewish cemeteries, there's never a cross on a tombstone of a Jew.

NORRIS: I don't think you can leap from that to the conclusion that the only war dead that the cross honors are the Christian war dead. I think that's an outrageous conclusion.

VFW: Suppose the government took down the cross, gave it to the VFW, then sold them the land and the VFW put the cross back up. Lawyer Eliasberg conceded that would likely be okay. But he added, it's not what happened here.

Justice Ginsburg: Then we're talking about something that's rather formal than substantial. Answer: It's not just formalism because under your scenario, the government would have no remaining interest in the land, whereas here, Congress conditioned the land transfer on maintaining the memorial.

Justice Ginsburg: If you prevail, what happens in Arlington Cemetery where there's the Argon cross memorial and the Canadian Cross of Sacrifice? There would be no problem with those, said lawyer Eliasberg, because they're among many religious symbols at Arlington.

Indeed, he noted, Arlington offers 39 different religious symbols for headstones. What would be a problem, he said, would be if Israel, for example, wanted to give a Star of David memorial just as the Canadians did a cross and the government refused to accept it. A decision in the case is expected later in the term.

Nina Totenberg, NPR News, Washington.

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Supreme Court Appears Divided In Cross Case

Jacob Overson walks near the controversial cross in the Mojave National Preserve in this 2003 photo. i i

A man walks near the controversial cross, which was covered by a tarp in this 2003 photo, on Sunrise Rock in the Mojave National Preserve in California. Christine Wetzel/Las Vegas Review Journal/AP hide caption

itoggle caption Christine Wetzel/Las Vegas Review Journal/AP
Jacob Overson walks near the controversial cross in the Mojave National Preserve in this 2003 photo.

A man walks near the controversial cross, which was covered by a tarp in this 2003 photo, on Sunrise Rock in the Mojave National Preserve in California.

Christine Wetzel/Las Vegas Review Journal/AP

The Supreme Court appeared divided along philosophical lines Wednesday as justices heard arguments in a long-running legal battle over a cross built as a memorial to U.S. war dead on federal park land in California's Mojave Desert.

The Obama administration argued that Congress removed any constitutional questions over the separation of church and state when it transferred ownership of the land where the cross stands to a private owner. The approach appeared to have some traction with the court's conservative justices.

Justice Samuel Alito asked, "Isn't that a sensible interpretation" of a court order prohibiting the cross' display on government property?

But the more liberal justices seemed to agree with a federal appeals court that invalidated the transfer, saying Congress was trying to maneuver around the First Amendment.

Opponents of the cross have argued that the presence of a Christian symbol on public land violates the First Amendment's prohibition against the government favoring a particular religion. But those who want the cross to remain say it's a historical symbol that is intended to honor all war dead.

The cross has stood on an outcropping of rock in a remote part of the California desert for 75 years. It was originally erected in 1934 by the Veterans of Foreign Wars without the permission of the government and been rebuilt twice since then.

In 1999, a Buddhist asked the National Park Service for permission to build a Buddhist shrine near the cross, but the request was refused.

Pending legal review, the cross at the Mojave National Preserve is now hidden within a plywood box. i i

Pending legal review, the cross at the Mojave National Preserve has been hidden within a plywood box. The U.S. Supreme Court will decide whether its status violates the Constitution's ban on establishment of religion. Courtesy of the Liberty Legal Institute hide caption

itoggle caption Courtesy of the Liberty Legal Institute
Pending legal review, the cross at the Mojave National Preserve is now hidden within a plywood box.

Pending legal review, the cross at the Mojave National Preserve has been hidden within a plywood box. The U.S. Supreme Court will decide whether its status violates the Constitution's ban on establishment of religion.

Courtesy of the Liberty Legal Institute

That led a former park service employee, Frank Buono, to challenge the presence of the cross, saying it was unconstitutional to have a religious symbol on public land. The U.S. Court of Appeals for the 9th Circuit in San Francisco has sided with Buono in several instances and ordered the cross removed. Each time, Congress has intervened, and for now, the cross stands covered with plywood.

In addition to transferring ownership of the land, lawmakers have also prohibited the park service from spending money to remove the cross, and later designated the site a national memorial to those who died during World War I.

On Wednesday, Obama administration attorneys contended that Buono did not have legal standing to file the suit in the first place because he's a Christian and was not harmed by the cross' presence.

Veterans groups are on both sides of the case, Salazar v. Buono. Some worry that other religious symbols that serve as war memorials might be threatened if the court sides with Buono.

Some Jewish and Muslim veterans maintain that the Mojave cross honors Christian veterans.

From NPR staff and wire reports

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